In Evarts v Pyro Engineering, No. 517394, 985 N.Y.S.2d 179, 181–82, 2014 N.Y. Slip Op. 02996, 2014 WL 1698366 (N.Y.A.D. 3 Dept., May 01, 2014), the court modified a lower court’s order and reversed the grant of summary judgment in defendants’ favor on plaintiff’s negligence cause of action arising from a fireworks-related injury.
Here, the attendees of a fireworks display sued the defendants – who designed, set up, and executed the display – following injuries allegedly caused by a fireworks malfunction. (The court’s summary of the setup and ignition process for the fireworks display – while not included here due to spatial efficiency – is fascinating.)
The lower court dismissed plaintiff’s complaint alleging, inter alia, negligence; the appellate court modifies and reverses that decision.
“To establish a prima facie case of negligence, the plaintiff is required to demonstrate that the defendant owed a duty to him or her, that the defendant breached that duty and that such breach was a proximate cause of the injuries sustained.” 117 A.D.3d at 1150.
As to the question of duty, the court explained:
Here, defendants possessed, furnished, set up and ignited “a large supply of dangerous fireworks” ( *1151 Morang v. Burnett, 216 A.D.2d 835, 836, 628 N.Y.S.2d 863  ) and, as such, were bound to exercise “a high degree of care” in order to prevent injury to others (Travell v. Bannerman, 174 N.Y. 47, 51, 66 N.E. 583 ; accord Morang v. Burnett, 216 A.D.2d at 836, 628 N.Y.S.2d 863). As to **182 the foreseeability of a malfunction, one of defendants’ representatives testified at his examination before trial that, although he had not experienced a “blow by” prior to the Ticonderoga show, such an event was “an occurrence in the industry,” that “the chance for a malfunction [was] obviously there” and that malfunctions can be dangerous. As to whether plaintiff was in the zone of foreseeable harm, plaintiff estimated that she was sitting approximately 700 feet from where the shells were being launched (well outside the purported safety radius) and, as noted previously, acknowledged that the debris from the first malfunctioning shell did not reach her location. Plaintiff also testified, however, that the second shell exploded “[v]ery close” to where she was sitting, causing sparks to land around her group, and one of defendants’ representatives conceded that “hot flaming debris” from this second shell was propelled into the crowd of spectators. Further, when plaintiff returned to the ball field the following day, she observed scorch marks on the grass—presumably caused by flaming debris from the detonated shell—approximately 20 feet away from where she had been sitting. Moreover, the police report prepared in this matter makes reference to a witness who claimed that the second shell exploded “15–20 feet away from the civilians sitting by Burgoyne [R]oad.” Under these circumstances, we are satisfied that plaintiff was within the zone of foreseeable harm (compare Lynfatt v. Escobar, 71 A.D.3d 743, 744–745, 896 N.Y.S.2d 450 , lv. denied 15 N.Y.3d 709, 2010 WL 3702573  ). Accordingly, Supreme Court erred in finding that defendants owed no duty to plaintiff.
As to the issues of breach of duty and proximate cause, the court explained: ;
Even assuming that defendants were in compliance with all applicable federal, state, local and industry regulations and standards—facts that have yet to be established—the record nonetheless contains numerous references to the allegedly disorganized nature of the fireworks show and the purported difficulties that defendants’ technicians were having with detonating the devices—as well as one technician’s alleged insistence that “the show go on” even after the shells malfunctioned. To the extent that defendants contend that they could not possibly foresee the manner in which plaintiff was injured, we note that plaintiff was not required to “demonstrate the foreseeability of the precise manner in which the accident occurred *1152 or the precise type of harm produced in order to establish the foreseeability component of [her negligence claim]” (Di Ponzio v. Riordan, 89 N.Y.2d at 583–584, 657 N.Y.S.2d 377, 679 N.E.2d 616; see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666  ). In short, viewing the evidence in the light most favorable to plaintiff as the nonmoving party (see U.W. Marx, Inc. v. Koko Contr., Inc., 97 A.D.3d 893, 894, 948 N.Y.S.2d 440  ), we cannot say that defendants established-as a matter of law-that they were without legal responsibility for plaintiff’s injuries.