Barker v. Parnossa, Inc.

• Decision Date: 17 June 1976
• Parties: , 352 N.E.2d 880 George BARKER, as Administrator of the Estate of Jeffrey Barker, Deceased, Appellant, v. PARNOSSA, INC., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 576

386 N.Y.S.2d 576

39 N.Y.2d 926, 352 N.E.2d 880

George BARKER, as Administrator of the Estate of Jeffrey Barker, Deceased, Appellant, v. PARNOSSA, INC., Respondent.

Court of Appeals of New York.

June 17, 1976.

Harry V. Lynch, Greenwood Lake, for appellant.

Thomas R. Newman and Charles F. McGuire, New York City, for respondent.

MEMORANDUM.

The order of the Appellate Division, 48 A.D.2d 916, 369 N.Y.S.2d 506, should be reversed and a new trial granted.

The defendant seeks to sustain the dismissal of the complaint on two grounds (1) the trespassing status of the infant, (2) the failure of the plaintiff to show the exact cause of the boy's death.

In light of today's decision in Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 886, the fact that the infant entered the defendant's property without consent is not conclusive. It is simply a factor to consider in determining the defendant's liability for the boy's death (see, also, Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794).

The plaintiff of course must still prove that the defendant's conduct was the proximate cause of the injury. However, as noted by the Chief Judge in his concurring opinion, that does not mean that the plaintiff must prove the exact precipitating event of the boy's death. There is no doubt that the death was the result of a fall from the silo and on all the facts of this particular case, the jury could find that by maintaining this useless silo without any safeguards, the defendant created an unreasonable and foreseeable risk of death or serious injury to trespassing children known to frequent the area. On this point we agree completely with the Chief Judge's analysis.

Accordingly, the order of the Appellate Division should be reversed and a new trial granted.

BREITEL, Chief Judge (concurring).

I concur in the result and vote to reverse the order of the Appellate Division and order a new trial for the following reasons:

Wholesale abandonment of the common-law rules governing the liability of a possessor of property to one who has sustained injuries on his property is unnecessary to justify plaintiff's recovery. The common law is served best by changes in its doctrine based on the progression of actual cases and a process of evolution which does not disrupt the essential pragmatism of the common law by excessive devotion to the promulgation of abstract ideologies (see concurring opn. in Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868, decided herewith). Instead, under the familiar common-law doctrine of 'attractive nuisance', better termed the 'child trespasser' doctrine, often disavowed but fully applicable in this State, defendant is liable for the death of plaintiff's 12-year-old child (for a remarkably similar case, applying the 'child trespasser' doctrine as restated in Restatement, Torts 2d, § 339, and permitting recovery, see McGill v. United States, 3 Cir., 200 F.2d 873, 875--876 (Goodrich, J.)).

Defendant Parnossa owned a parcel of land in the City of Newburgh. Once used by a prior owner as a coal storage yard, this business had been abandoned since 1965 and the land was held by defendant purely for speculative purposes. On the land were a number of low buildings and four 80-foot-tall coal silos, spaced two feet apart, and joined at their tops by a connecting roof.

The silos were located about five feet from a path across the property which ran from a break in the chain-link fence adjacent to a boy's club. The path was commonly used by children as a 'short cut' to school. Children regularly used defendant's land as a playground and some of them would climb on the silos. Defendant's vice-president admittedly knew that children often played on the land. Although 'danger' signs were posted on the silos, no caretaker or guard was ever on duty.

On March 14, 1971, decedent Jeffrey, a 12 year old, and a number of his friends, went to play on defendant's property. Jeffrey climbed up the outside of the silos, using the protruding steel bands wrapped around them as supports. Some of the other boys climbed to the top by means of an interior stairway. Once at the top of the silo, Jeffrey went inside and walked or ran on an interior catwalk not maintained in good repair and covered with pigeon excreta. At some point of his activity, for reasons unknown, the 12-year-old boy fell approximately 80 feet from the catwalk to his death.

Jeffrey Barker was concededly a 'trespasser' on defendant's property. A trespasser is one who enters upon or remains on property without privilege or the consent of the possessor (Vaughan v. Transit Development Co., 222 N.Y. 79, 82, 118 N.E. 219; Restatement, Torts 2d, § 329). Generally, a possessor has a duty to refrain only from inflicting 'willful, wanton or intentional' injury upon a trespasser (see, e.g., Beauchamp v. New York City Housing Auth., 12 N.Y.2d 400, 405, 240 N.Y.S.2d 15, 190 N.E.2d 412; Lo Casto v. Long Is. R.R. Co., 6 N.Y.2d 470, 474, 190 N.Y.S.2d 366, 160 N.E.2d 846). Maintenance of an artificially created, inherently dangerous but deceptively innocent instrumentality or condition, commonly referred to as a 'trap', is equated to a willful, wanton or intentional act (Beauchamp v. New York City Housing Auth., 12 N.Y.2d 400, 405, 240 N.Y.S.2d 15, 190 N.E.2d 412, Supra; Mayer v. Temple Props., 307 N.Y. 559, 563, 122 N.E.2d 909).

It has been repeatedly stated in this State that a possessor's duty is the same with respect to both adult and child trespassers (Beauchamp v. New York City Housing Auth., 12 N.Y.2d 400, 405, 240 N.Y.S.2d 15, 190 N.E.2d 412, Supra; Carbone v. Mackchil Realty Corp., 296 N.Y. 154, 159, 71 N.E.2d 447, and cases cited). In fact, however, the rule has not applied indiscriminately to children as it would be to adults.

It has been recognized through a long line of cases that, because of the special propensities of children and the prevailing social policy of protecting them from harm, under appropriate circumstances the status of a child as a trespasser will not preclude liability for negligently inflicted injury (see Martinez v. Kaufman-Kane Realty Co., 34 N.Y.2d 819, 821, 359 N.Y.S. 51, 316 N.E.2d 336; Patterson v. Proctor Paint & Varnish Co., 21 N.Y.2d 447, 453, 288 N.Y.S.2d 622, 235 N.E.2d 765; Collentine v. City of New York, 279 N.Y. 119, 125, 17 N.E.2d 792; Prosser, Torts (4th ed.), § 59, p. 366; cf. Mevorah v. Garyn, 35 N.Y.2d 934, 936, 365 N.Y.S.2d 165, 324 N.E.2d 547, affg. on dissenting memorandum at App.Div., 35 A.D.2d 823, 317 N.Y.S.2d 53; Mayer v. Temple Props., 307 N.Y. 559, 563, 565, 122 N.E.2d 909, Supra; Kingsland v. Erie County Agric. Soc., 298 N.Y. 409, 423--424, 84 N.E.2d 38; Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 446--447, 26 N.E.2d 970).

To avoid outright repudiation of older cases declaring the so-called 'attractive nuisance' doctrine inapplicable in this State, many of these holdings achieved the result by expanding the traditional concept of a 'trap' (see Mevorah v. Garyn, supra; Martinez v. Kaufman-Kane Realty Co., supra; Runkel v. City of New York, 282 App.Div. 173, 176, 123 N.Y.S.2d 485; Prosser, Op. cit., at p. 365, n. 40; cf., generally, Brzostowski v. Coca-Cola Bottling Co., 16 A.D.2d 196, 199--201, 226 N.Y.S.2d 464 (Halpern, J.)). In light of this common-law development, it is appropriate to recognize that the so-called 'attractive nuisance', or better, the 'child trespasser' doctrine has been and is being applied in this State, as it is in the overwhelming majority of jurisdictions in this Country (see Martinez v. Kaufman-Kane Realty Co., 34 N.Y.2d 819, 821, 359 N.Y.S.2d 51, 316 N.E.2d 336, Supra; Patterson v. Proctor Paint & Varnish Co., 21 N.Y.2d 447, 453, 288 N.Y.S.2d 622, 235 N.E.2d 765, Supra; Prosser, Op. cit., § 59, at p. 365).

Thus, as formulated by Restatement, Torts 2d (§ 339):

'A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if.

'(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

'(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

'(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

'(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

'(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.'

The 'attractive nuisance' doctrine is unfortunately misnamed. There need be no luring of the child onto the property by an 'attractive' condition of the land (see Prosser, Op. cit., at pp. 365--368; 2 Harper and James, Torts, § 27.5, at p. 1147). Instead, as stated in the Restatement (§ 339, Comment B, at p. 198): '(T)he basis of the rule is...