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eBook details

• Title: Kathleen Mcguigan v. State New York
• Author : Supreme Court of New York
• Release Date : January 20, 1972
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 65 KB

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[38 A.D.2d 783 Page 783] Case held, decision reserved and matter remitted to the Court of Claims for appropriate findings, in accordance with the
following memorandum: It is apparent from its written decision that the trial court misunderstood the uncontradicted testimony
with respect to the operation of the Corbin door closer, which claimant alleged caused the door through which she was passing
to hit her in the back resulting in injuries for which compensation is sought against the State. In its finding of contributory
negligence the court's expressed understanding of the door closer's normal operation was that the speed of the door closing
was in its first phase slow and in its second more rapid, in direct contradiction of the undisputed testimony of defendant's
expert, and the conclusion was then reached that claimant had attempted to get through the door with her arms full without
opening the door wide enough to permit a safe entrance. Such a finding of contributory negligence based on a misunderstanding
of the uncontradicted expert testimony in the case and without any support in the evidence should be reversed and a new finding
made by the trial court. The dismissal having been based on the sole ground of contributory negligence on the part of the
plaintiff, no finding was made by the court on the issue of defendant's negligence. Questions of fact were presented on the
trial as to whether there was a malfunction of the door that was the proximate cause of the accident, as to whether there
was a failure on the part of the defendant to provide for reasonable and adequate inspection and maintenance of the door and
as to whether a malfunctioning of the door existed for such a period of time that the defendant had constructive notice of
it and had a reasonable opportunity to correct it. A determination of such questions requires a resolution by the trial court
of the issues of credibility raised by the conflicting testimony of the claimant's witnesses, all faculty members of the
State University College at Buffalo, and the defendant's witnesses, maintenance personnel employees at [38 A.D.2d 783 Page
784]

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