29 A.D.2d 669 | N.Y. App. Div. | 1968
Judgment of the Supreme Court, Nassau County, dated June 30, 1966, in favor of plaintiffs after a non jury trial, reversed, on the law and the facts, and complaint dismissed, without costs. In our, opinion, plaintiffs failed to make out a prima facie ease of negligence on the part of defendant. There is no evidence whatsoever as to what caused the truck of the skate to separate from the shoe. Moreover, proof of the surrounding circumstances — defendant’s daily inspection program, the sudden nature of the detachment and the absence of any difficulty in skating prior thereto — ■ indicates that nonnegligent causation (an undiscoverable latent defect) is at least, if not more, probable, than negligent causation (an improperly fastened lock nut). Therefore, we must apply the well-settled rule that defendant must be exonerated if an inference of nonnegligenee is as probable as an inference of negligence (Breen v. Areiter, 13 A D 2d 833, 834). Christ, Acting P. J., Rabin, Hopkins and Munder, JJ., concur; Benjamin, J., dissents and votes to affirm the judgment, with the following memorandum: On February 23, 1962, the infant plaintiff, who was then 14 years of age, went to defendant’s roller skating rink along with some friends. After paying the admission fee, he rented a pair of roller skates. These were shoes with skates attached. Each skate had front and rear hangers and trucks which locked in place by a lock nut and bolt. The skates were claimed by defendant to have been cheeked daily and again before they were rented. The infant plaintiff was injured when, after skating for some 15 or 20 minutes, the entire front truck of the skate detached, causing
