Benjamin v. City of New York

• Decision Date: 20 March 1984
• Citation: 473 N.Y.S.2d 450,99 A.D.2d 995
• Parties: James Corey BENJAMIN, etc., et al., Plaintiffs-Respondents-Appellants, and Robert Wiggins, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 450

473 N.Y.S.2d 450

99 A.D.2d 995

James Corey BENJAMIN, etc., et al., Plaintiffs-Respondents-Appellants, and Robert Wiggins, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant-Respondent.

Supreme Court, Appellate Division,

First Department.

March 20, 1984.

I.J. Melito, New York City, for plaintiffs-respondents-appellants.

J.R. Hupper, Jr., New York City, for defendant-appellant-respondent.

Before MURPHY, P.J., and KUPFERMAN, SANDLER, ROSS and ALEXANDER, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County, entered on July 28, 1982, after a jury verdict, which awarded judgment in favor of plaintiffs James Corey Benjamin in the sum of $100,000.00, Kevin Wiggins in the sum of $500,000.00, Dorothy Benjamin in the sum of $26,796.44, June Wiggins in the sum of $88,161.48, denied the motion of plaintiffs James Corey Benjamin, Kevin Wiggins to set aside the verdict on the ground of inadequacy but granted Robert Wiggin's motion to set aside the verdict on the ground of inconsistency, severed the cause of action of Robert Wiggins, and ordered a new trial solely on the issue of damages is unanimously reversed, on the law, without costs, and the complaint dismissed. Cross-appeal of the plaintiffs, James Corey Benjamin and Kevin Wiggins, is dismissed as moot.

Plaintiffs seek to recover damages for personal injuries sustained by the infant plaintiffs, James, Kevin and Robert who at the time of the accident were ages 9, 6 and 13 respectively, while playing with other children on an unimproved vacant City-owned lot, between 1056 and 1064 Caldwell Avenue, in the Bronx, at approximately 3:30 P.M., on June 17, 1974. The lot had been occupied by two abandoned buildings that were demolished in or about 1969/1970. The easterly side of the lot was unenclosed and fronted on Caldwell Avenue.

Buildings enclosed the lot on two sides and a partially bent chain link fence enclosed the rear and part of one side. Some two or three years prior to the incident, the lot had been cleared by local civic association members with the assistance of Model Cities workers and equipment provided by the Sanitation Department. The Department of Sanitation also would haul garbage from the lot whenever requested by the area citizens. Attempts were made by the area citizens, with the help of City agencies, to keep the lot clean for use as a play area for children and for certain community activities. A sign was posted on a tree near the lot proclaiming the lot to be "the Future Home of a Park for the Community Children. Keep it clean-Curb Dogs". Nonetheless, it appears that occasionally garbage was dumped on the lot and alongside the adjoining buildings.

On the afternoon of the accident, while Robert and other children, including Kevin were playing softball with James and others watching, as the game progressed, 14 year old, Fred Bailey, took a can of inflammable substance, believed to have been lacquer or paint thinner from a van parked behind one of the adjoining buildings and brought it onto the lot. Another youngster, whose identity was not clearly established, poured the contents of the can into a pipe protruding from the ground and ignited it. As he continued to pour more of the liquid into the pipe, the flame grew higher and James and Kevin, as well as other children, drew near to watch. Just as Robert was approaching to tell the youth not to pour the liquid, there was an explosion which sprayed the burning liquid over the infant plaintiffs, causing them to be severely burned. The jury returned verdicts in their favor and in favor of their parents for medical expenses, in the amounts indicated.

On appeal, defendant argues that the judgment in favor of plaintiffs was against the weight of the evidence; that the evidence demonstrated that it exercised reasonable care in the maintenance of its property and was not negligent; and that if it were found to be negligent, such negligence did not cause plaintiffs' injuries. Plaintiffs Benjamin and Kevin Wiggins cross-appeal, contending that the awards for their injuries were inadequate.

Viewing the evidence in the light most favorable to the plaintiffs, (S. Kornblum Metals Co. v. Intsel Corp., 38 N.Y.2d 376, 379, 379 N.Y.S.2d 826, 342 N.E.2d 591; Nicholson v. Board of Education, 36 N.Y.2d 798, 801, 369 N.Y.S.2d 703, 330 N.E.2d 651), we find that it fails to establish the essential elements of negligence. In order to warrant a submission to the jury, the plaintiff's evidence must demonstrate (1) the existence of a duty owed by defendants to the plaintiff; (2) a breach of such duty, and (3) injury to plaintiff proximately resulting therefrom. (Akins v....