Barnes v. Stone-Quinn, STONE-QUINN

• Decision Date: 29 December 1993
• Docket Number: STONE-QUINN
• Citation: 606 N.Y.S.2d 485,195 A.D.2d 12
• Parties: Manfred BARNES and Katherine Barnes, Individually and as Parents and Natural Guardians of Timothy Barnes, an Infant Under the Age of 15 Years, Appellants, v. Beverly, et al., Defendants, Belgium Cold Springs Fire District, Belgium Cold Springs Fire Department and Ruth Quartz, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 485

606 N.Y.S.2d 485

195 A.D.2d 12

Manfred BARNES and Katherine Barnes, Individually and as Parents and Natural Guardians of Timothy Barnes an Infant Under the Age of 15 Years, Appellants, v. Beverly STONE-QUINN, et al., Defendants Belgium Cold Springs Fire District, Belgium Cold Springs Fire Department and Ruth Quartz, Respondents.

Supreme Court, Appellate Division Fourth Department.

Dec. 29, 1993.

Greene and Reid, by Melvin Bressler, Syracuse, for appellants.

Mackenzie, Smith, Lewis, Michell & Hughes by Barney Bilello (Barney F. Bilello, of counsel), Syracuse, for respondent, Ruth Quartz.

Hancock & Estabrook by Patrick Connors, Syracuse, for respondents, Belgium Cold Springs Fire Dept. and Dist.

Andino Law Firm, Kathleen D. Henry, Syracuse, for respondent, Town of Lysander.

James E. Gaul, Cicero, for respondent, Beverly Stone-Quinn.

Before DENMAN, P.J., and GREEN, BALIO and FALLON, JJ.

GREEN, Justice:

On September 25, 1990, seven-year-old Timothy Barnes was riding his bicycle on Patchett Road Spur in the Town of Lysander. A vehicle owned and operated by Beverly Stone-Quinn, travelling eastbound on Patchett Road, collided with Timothy at the intersection of Patchett Road and Patchett Road Spur. The property at that intersection was owned by defendants Belgium Cold Springs Fire Department (Fire Department) and Belgium Cold Springs Fire District (Fire District) and was leased by defendant Ruth Quartz.

Plaintiffs Manfred and Katherine Barnes, Timothy's parents, commenced this action to recover damages for injuries allegedly sustained by Timothy in the accident, loss of society and reimbursement of medical expenses. Plaintiffs allege that the accident was caused by the negligence of defendants Fire Department, Fire District and Quartz in allowing the growth on the property of tall grass, brush and weeds, which obstructed the view of motorists and bicyclists approaching the intersection. As evidence of defendants' negligence, plaintiffs cite section 139-53 of the Town of Lysander Zoning Ordinance, entitled CORNER LOTS. That section provides:

"On corner lots no berm, fence, wall, hedge or other planting or structure more than three (3) feet in height shall be erected, placed or maintained within the triangular area formed by the intersecting street lines and straight line joining said street lines at points which are thirty-five (35) feet distant from the point of intersection measured along such street line."

Defendants the Fire Department, the Fire District and Quartz moved for summary judgment. Supreme Court granted the motions and dismissed the complaint against those defendants. The court held that neither the common law nor the Town of Lysander ordinance imposed a duty upon defendants to control vegetation for the benefit of motorists or bicyclists on the public highways where the accident occurred. In granting summary judgment, the court concluded that defendants could not be held liable for personal injuries under the ordinance absent "language in the Code specifically stating that a breach of the duties created by the Code will result in liability to anyone injured by that breach (see, Appio v. City of Albany, 144 AD2d 869 ."

I.

Supreme Court properly held that there is no common-law duty imposed upon owners or occupiers of land to control vegetation on their property for the benefit of users of a public highway (see, Krotz v. CSX Corp., 115 A.D.2d 310, 496 N.Y.S.2d 190, citing Prosser and Keeton, Torts § 57, at 390 [5th ed.]; see also, Ingenito v. Robert M. Rosen, P.C., 187 A.D.2d 487, 589 N.Y.S.2d 574, lv. denied 81 N.Y.2d 705, 595 N.Y.S.2d 400, 611 N.E.2d 301). The court erred, however, in concluding that defendants may not be held liable for their alleged violation of the duty, imposed by section 139-53 of the Town of Lysander Code, to control the height of plants and structures on the corner lot.

It is established law that violation of an ordinance (e.g., a building code) is "evidence of negligence which the jury could take into consideration with all other evidence on the subject" (Major v. Waverly & Ogden, 7 N.Y.2d 332, 336, 197 N.Y.S.2d 165, 165 N.E.2d 181; see also, Bjelicic v. Lynned Realty Corp., 152 A.D.2d 151, 154, 546 N.Y.S.2d 1020, appeal dismissed 75 N.Y.2d 947, 555 N.Y.S.2d 693, 554 N.E.2d 1281; Lein v. Czaplinski, 106 A.D.2d 723, 724, 484 N.Y.S.2d 154). Whether an ordinance or a statute creates a standard of care depends upon the risks that reasonably may be anticipated as likely to follow from a violation (see, Prosser and Keeton, Torts, op. cit., § 36, at 226-227).

"It is a well-settled rule in this State that where an ordinance for the protection or benefit of individuals prohibits the doing of acts or imposes a specific duty, the neglect to obey the prohibition or to perform the duty is some evidence of negligence to be considered by a jury in an action brought by one for whose protection the statute was enacted to recover for any injuries of the character which it was designed to prevent, proximately produced by such disobedience or neglect."

(Carlock v. Westchester Lighting Co., 268 N.Y. 345, 349, 197 N.E. 306; accord, Monroe v. City of New York, 67 A.D.2d 89, 99, 414 N.Y.S.2d 718).

Plaintiffs have established that the ordinance was intended to protect those persons travelling on Town highways from the risk of injury that may reasonably be anticipated from reduced visibility at intersections caused by overgrown vegetation (see, Prosser and Keeton, Torts, op. cit., § 57, at 388, n. 25). It is for a jury to determine whether defendants violated the ordinance and whether the alleged violation of the ordinance proximately caused the accident (see, Sullivan v. Locastro, 178 A.D.2d 523, 525, 577 N.Y.S.2d 631, lv. denied 81 N.Y.2d 701, 594 N.Y.S.2d 715, 610 N.E.2d 388).

We reject Supreme Court's conclusion, advocated by defendants on appeal, that tort liability may not be imposed because the ordinance did not explicitly provide that the landowner will be held...