HARVEY II v. SILVER DOLLAR SHOWS INC (2000)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated July 1, 1999, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The infant plaintiff suffered a broken leg while on an amusement ride owned by the defendant William Lauther at a fair organized by the defendant Silver Dollar Shows, Inc.   The infant plaintiff's hands and feet were inside the ride at all times, and he exhibited no signs of pain or discomfort during the ride.   After the ride concluded, the infant plaintiff stumbled as he exited the car.   His father stood him up on the platform surrounding the ride, and his leg buckled.

The defendants presented evidence in admissible form that the ride was not defective and was properly operated and maintained.   This was sufficient to establish their entitlement to judgment as a matter of law, thereby shifting the burden to the plaintiffs to demonstrate the existence of a material issue of fact (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The plaintiffs asserted the doctrine of res ipsa loquitur to establish a prima facie case of negligence.   However, this doctrine is inapplicable in this case, as the plaintiffs failed to show with any certainty what caused the infant plaintiff's injuries, and they have not eliminated within reason all possible causes of the accident other than the defendants' negligence (see, Bass v. Otis El. Co., 255 A.D.2d 284, 285, 680 N.Y.S.2d 113;  Wang v. Alexander's Dept. Store, 247 A.D.2d 467, 668 N.Y.S.2d 104;  Braithwaite v. Equitable Life Assur. Socy. of U.S., 232 A.D.2d 352, 353, 648 N.Y.S.2d 628;  see also, Ebanks v. New York City Tr. Auth., 70 N.Y.2d 621, 623, 518 N.Y.S.2d 776, 512 N.E.2d 297;  Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 228, 501 N.Y.S.2d 784, 492 N.E.2d 1200;  Meegan v. Westbury Prop. Inv. Co., 234 A.D.2d 433, 651 N.Y.S.2d 152;  Raimondi v. New York Racing Assn., 213 A.D.2d 708, 624 N.Y.S.2d 273).   Since the plaintiffs failed to raise a material issue of fact, the court properly granted the defendants' motion for summary judgment (see, Winegrad v. New York Univ. Med. Center, supra).

MEMORANDUM BY THE COURT.