Clark v. Interlaken Owners, Inc.

• Citation: 2 A.D.3d 338,2003 NY Slip Op 19865,770 N.Y.S.2d 58
• Decision Date: 30 December 2003
• Docket Number: 478.
• Parties: JOHN CLARK, Appellant, v. INTERLAKEN OWNERS, INC., Defendant, and ANDEM CONSTRUCTION, INC., Respondent.
• Court: New York Supreme Court Appellate Division

2 A.D.3d 338

770 N.Y.S.2d 58

2003 NY Slip Op 19865

JOHN CLARK, Appellant, v. INTERLAKEN OWNERS, INC., Defendant, and ANDEM CONSTRUCTION, INC., Respondent.

478.

Appellate Division of the Supreme Court of the State of New York, First Department.

December 30, 2003.

Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered December 20, 2001, on a jury verdict finding the infant plaintiff 75% responsible for his injuries and awarding him $15,667.88, reversed, on the law and in the

exercise of discretion, without costs, and the matter remanded for a new trial.

This is an action to recover damages for personal injuries sustained by plaintiff, a five-year-old child at the time of the injury. Plaintiff's finger was crushed while he was playing on heavy construction equipment belonging to defendant Andem Construction, Inc. (Andem). Andem had been hired by defendant Interlaken Owners, Inc. (Owners), the owner of the apartment complex known as Interlaken Gardens where plaintiff lived with his family, to resurface a garage area in the complex. The equipment, including a trailer that transported the equipment, was stored on the Interlaken Gardens premises during the four-week construction project.

The construction area where the trailer and other equipment were stored was partially roped off by a plastic construction barrel and plastic tape that displayed the word "caution." However, access to the construction area was easily obtainable by simply walking around the barrel or under the tape.

The injury occurred on May 23, 1996, at about 5:30 in the afternoon, after the construction workers had left for the day. Plaintiff and his friend, on their way to a nearby playground, took a detour into the construction site where they found the trailer with its heavy, steel ramps raised in an upright position. When the ramps were raised, they took on the appearance of a ladder. Plaintiff apparently tried to climb the rungs of the ramp, whereupon the ramp, which was either completely unsecured or secured only by small chains, swung down, carrying plaintiff with it, and plaintiff's finger was caught between the ramp and an adjacent piece of equipment.

The jury found that plaintiff was 75% responsible for his injuries, while Andem was 25% responsible. The jury further found that, although Owners was negligent in failing to maintain its property in a reasonably safe condition, its negligence was not a cause of the accident. Plaintiff appealed.

Plaintiff contends, inter alia, that the trial court erred by including instructions on the doctrine of "assumption of risk" in its charge to the jury. The doctrine of assumption of risk provides a defense to a personal injury claim if it is shown that the condition or activity that caused the injury involved an inherent, known and obvious risk that was voluntarily assumed by the plaintiff (see e.g. Morgan v State of New York, 90 NY2d 471, 484 [1997]). Awareness of risk "is not to be determined in a vacuum" (id. at 486) but, rather, "against the background of the skill and experience of the particular plaintiff" (id.). For the doctrine to apply, the plaintiff must have the capacity to understand and fully appreciate the risk involved. Thus, we have held that the assumption of risk doctrine did not apply to injuries suffered by a six-year-old child who was burned when he climbed over a fence to investigate the defendant's steam hose located near a playground (Roberts v New York City Hous. Auth., 257 AD2d 550 [1999], lv denied 93 NY2d 811 [1999]). The doctrine is equally inapplicable in this case, where the danger was even more accessible and the risk at least as unappreciated by this five-year-old plaintiff. Instructing the jury on assumption of risk was, therefore, erroneous as a matter of law.

Defendant correctly points out that plaintiff failed to object to the inclusion of the assumption of risk instruction when it was given and that, therefore, the error was not preserved for review (CPLR 4110-b; Goldberg v Wirtosko, 182 AD2d 350 [1992]). However, since we find the error in the charge to be so fundamental as to warrant reversal, we exercise our discretion to review in the interest of justice (Aragon v A & L Refrig. Corp., 209 AD2d 268 [1994]; Rodriguez v Cato, 63 AD2d 922, 923 [1978]). In view of our decision on this issue, we need not address plaintiff's remaining contentions.

Concur — Rosenberger, Lerner and Marlow, JJ.

Buckley, P.J., and Tom, J., who dissent in a memorandum by Tom, J., as follows:

Insofar as the challenge to the instruction was not preserved (CPLR 4110-b, 5501 [a] [3]), and I do not conclude that governing law constrains us to find that the purported error was fundamental, I respectfully dissent and would affirm.

Preliminarily, New York has long disclaimed any per se rule with regard to the age at which a child cannot legally assume a risk and thereby not be responsible for comparative fault for his or her injury. Rather, "[n]o rule of law fixes an arbitrary age at which a particular degree of care may be expected, or furnishes a true presumption which takes the place of evidence, that a child is not chargeable with contributory negligence. Only where the circumstances admit of only one inference may the court decide as a matter of law what inference shall be drawn" (Camardo v New York State Rys., 247 NY 111, 117-118 [1928]). Hence, although "[a] child may be of such tender years that it lacks the experience which would enable it to realize the presence of a threatening danger, and the judgment which would enable it to avoid the danger ... [a] child's age does not alone determine its capacity to care for itself and to avoid dangers which may threaten" (id. at 115-116). Moreover, if conflicting inferences may be drawn regarding the child's ability to understand the dangers posed by his conduct, a factual issue is presented and that question must be given to the jury. The question whether the child can be legally capable of understanding and assuming the risk is judicially resolvable only if "the only reasonable inference is that the child was incapable of realizing or avoiding the danger of injury" (id. at 116). Hence, even four-year-old children...