Clark v. City of Buffalo

• Decision Date: 23 April 1942
• Citation: 288 N.Y. 62,41 N.E.2d 459
• Parties: CLARK v. CITY OF BUFFALO (two cases).
• Court: New York Court of Appeals Court of Appeals

288 N.Y. 62

41 N.E.2d 459

CLARK

v.CITY OF BUFFALO (two cases).

Court of Appeals of New York.

April 23, 1942.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Actions by Alberta Grace Clark, an infant, by Delbert Clark, her guardian ad litem, and by Delbert Clark individually, against the City of Buffalo for personal injuries to infant plaintiff. From judgments of the Appellate Division, 262 App.Div. 940, 29 N.Y.S.2d 1022, and 262 App.Div. 940, 29 N.Y.S.2d 954, unanimously affirming judgments for plaintiffs on verdicts rendered at a Trial Term, James, J., defendant appeals by permission of the Court of Appeals after denial of appeals by the Appellate Division, 262 App.Div. 986, 30 N.Y.S.2d 701.

Judgments reversed, and complaints dismissed.

,RIPPEY and DESMOND, JJ., dissenting. Edward J. Sullivan, Corporation Counsel, of Buffalo (Bart J. Shanahan, of Buffalo, of counsel), for appellant.

Willard M. Pottle, of Buffalo, for respondents.

LEWIS, Judge.

Riverside Park in the city of Buffalo is owned and maintained by that city for public use. Within the park area of five acres is a variety of recreational facilities including a swimming pool for adults and a wading pool for children. During the morning of July 14, 1940, the infant plaintiff, a child of seven years, accompanied by her brother, aged five, and another companion, aged ten, were wading. There came a time when they left the pool and walked to an adjacent grassy slope to enjoy a sun bath. Meantime a boy of eight years, who had been wading with them and with whom no altercation had taken place, remained standing near the edge of the pool. As the plaintiff and her companion mounted the grassy slope, the boy, without warning and without cause, picked up several stones and small pieces of glass which he threw in their direction. One of the pieces of glass struck and permanently injured the plaintiff's eye as she turned to look back.

By the present actions the infant plaintiff to whom reference will be made as ‘the plaintiff’ and her father charge the city of Buffalo with legal responsibility for her injuries. Judgments in the plaintiffs' favor, entered upon a jury's verdict at Trial Term, have been unanimously affirmed by the Appellate Division. The judgments of affirmance are here on appeal by our permission.

The city is charged with negligence in that, having permitted a concessionaire to sell within the park drinks from bottles which when emptied were thrown upon the ground and broken, the city failed to remove broken glass from the ground and failed properly to supervise children while playing in the park.

(1) The city is not an insurer of the safety of those who make use of its park facilities. The law requires, however, that it shall exercise reasonable care in the maintenance of its parks and in the supervision of their use by the public. Curcio v. City of New York, 275 N.Y. 20, 23, 9 N.E.2d 760;Peterson v. City of New York, 267 N.Y. 204, 206, 196 N.E. 27.

(2) In the present record there is evidence that refuse, including empty bottles, is discarded by the public about the park and that children at play have been seen to throw such refuse. There is also evidence that bottles thus discarded have in many instances become broken. But there is uncontradicted evidence that on the date of the accident and prior thereto the city employed at...