Faherty v. Birchwood Lodge

QUEENS COUNTY
Products Liability

New York Law Journal

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Justice Charles Markey

Miracle Recreation Equipment moved for summary judgment dismissing the complaint against them, and Birchwood Lodge cross-moved for summary judgment dismissal of the complaint against it in this action arising from an accident in which infant Faherty sustained an amputation of two fingertips after jumping from a swing at Birchwood. Faherty's fingers were caught in the chain of the swing, and plaintiffs alleged the swing set was dangerous as the chain was improperly sized and a covering was not provided. The court denied Miracle's motion, noting conflicting opinions of the parties' experts regarding the reasonableness of the swing's design presented issues of credibility reserved for the trier of fact. Defendants contended Faherty assumed the risk, yet the court ruled primary assumption of risk could not constitute a defense to a strict products liability claim. Also, as Birchwood failed to show prima facie entitlement to judgment by submitting evidence the chain link swing was not inherently dangerous and was readily observable, its cross-motion was also denied.

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