Abramowitz v. Board of Education of New York , 78 A.D.2d 836 ( 1980 )

Judgment, Supreme Court, Bronx County, entered July 12,1979, upon a verdict awarding plaintiff damages in the sum of $40,000, unanimously reversed, on the law, and the matter remanded for a new trial, with costs to abide the event. Plaintiff, a schoolteacher, suffered severe burns when vials of acid wich she was carrying down an unattended school stairway were accidentally knocked over, causing the chemicals to splatter on her skin, after two boys playing ball and running backwards collided with her. We believe that a prima facie case was established to justify the jury’s award of $40,000, based on the board of education’s failure to monitor adequately the stairways during a class change. There was evidence that in the three years prior to the incident five stairway accidents had occurred, in two of which students had run into teachers. In fact, though appealed from, the board does not contest the amount of the verdict itself. Unfortunately, however, the case was submitted to the jury in a manner which permitted it to consider the assignment of plaintiff, a nonlicensed science teacher, “to use specialized science apparatus and chemicals” and the failure to provide a science laboratory on the same floor as her classroom. On the evidence, neither of these two theories of liability would support a finding of negligence. Timely exception to the court’s charge was taken, and the jury returned a general verdict. We cannot conclude that the jury did not base its finding of negligence on either of these nonactionable predicates and, accordingly, we reverse and direct a new trial. (Bergen v I.L.G.W. U. Houses, 38 AD2d 933,934, and cases cited therein.) Concur — Birns, J. P., Sandler, Sullivan, Markewich and Silverman, JJ.