59 N.Y.2d 26, Kush by Marszalek v. City of Buffalo

Citation:59 N.Y.2d 26, 462 N.Y.S.2d 831
Party Name:Kush by Marszalek v. City of Buffalo
Case Date:May 05, 1983
Court:New York Court of Appeals

Page 26

59 N.Y.2d 26

462 N.Y.S.2d 831

David KUSH, an Infant, By Sally MARSZALEK, His Mother and Natural Guardian, et al., Respondents,


CITY OF BUFFALO et al., Appellants.

New York Court of Appeals

May 5, 1983.

[462 N.Y.S.2d 832] Joseph P. McNamara, Corp. Counsel, Buffalo (Carl Tronolone, Buffalo and Michael Hughes, Buffalo, of counsel), for appellants.

[462 N.Y.S.2d 833] Robert B. Nichols and Paul William Beltz, Buffalo, for respondents.


COOKE, Chief Judge.

A school that negligently fails to secure dangerous chemicals from unsupervised access by children will not be relieved of liability when an injury occurs and it is reasonably foreseeable that the chemicals might be stolen by children.

During 1972, as part of a summer youth program sponsored by the Buffalo Board of Education, two 15-year-old students were hired to assist the custodial staff at Kensington High School. On July 11, while the adult employees were on their coffee break, the two, unsupervised student employees went to the school's chemistry laboratory. Neither the laboratory nor its adjacent storeroom were locked. The employees took some magnesium powder and potassium nitrate from glass jars, placed the chemicals into plastic sandwich bags, and dropped the bags from a fourth story window into the bushes below. They intended to retrieve the chemicals after work that day.

The infant plaintiff, then eight years old, lived near the school and regularly played on its grounds. On the day of the accident, as he had done previously, the child walked along a trodden path behind the bushes where the chemicals had been dropped. He found the chemicals and, believing them to be sand, began playing with the chemicals and with matches he had earlier found. The chemicals exploded and the boy sustained second degree burns to his hands, arms and face.

Plaintiffs brought this negligence action and the jury found the board of education liable for the infant plaintiff's injuries. This appeal presents issues concerning the scope of defendant's duty to secure dangerous chemicals stored on school premises, whether defendant breached this duty, and, if so, whether defendant's breach proximately caused plaintiff's injury. This court now affirms, 89 A.D.2d 786, 453 N.Y.S.2d 388.

A landowner has a duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868). Defining the nature and scope of the duty and to whom the duty is owed requires consideration of the likelihood of injury to another from a dangerous condition or instrumentality on the property; the severity of potential injuries; the burden on the landowner to avoid the risk; and the foreseeability of a potential plaintiff's presence on the property (see id.; see, also, Danielenko v. Kinney Rent-A-Car, 57 N.Y.2d 198, 204-205, 455 N.Y.S.2d 555, 441 N.E.2d 1073; Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 329-330, 441 N.Y.S.2d 644, 424 N.E.2d 531; Di Salvo v. Armae, Inc., 41 N.Y.2d 80, 82-83, 390 N.Y.S.2d 882, 359 N.E.2d 391).

First deciding to whom a duty, if any, was owed, plaintiff's presence on...

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