Collentine v. City of New York

• Decision Date: 29 November 1938
• Citation: 17 N.E.2d 792,279 N.Y. 119
• Parties: COLLENTINE et al. v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

279 N.Y. 119

17 N.E.2d 792

COLLENTINE et al.

v.CITY OF NEW YORK.

Court of Appeals of New York.

Nov. 29, 1938.

Action by Frank Collentine, Jr., an infant, by Frank Collentine, Sr., his guardian ad litem, and Frank Collentine, Sr., individually, against the City of New York for injuries received by the infant plaintiff when he fell from roof of building located in park, and for loss of services, companionship and prospective earnings of the infant plaintiff and for moneys expended and to be expended by Frank Collentine, Sr., for medical care, nursing and hospitalization. From a judgment of the Appellate Division, First Department, 252 App.Div. 742, 299 N.Y.S. 750, which affirmed a judgment of the Trial Term entered on a verdict directed in favor of the defendant, the plaintiffs appeal.

Reversed and new trial granted. Appeal from Supreme Court, Appellate Division, First department.

Frank L. Tyson, of New York City, for appellants.

William C. Chanler, Corp. Counsel, of New York City (Paxton Blair and Arthur H. Goldberg, both of New York City, of counsel), for respondent.

RIPPEY, Judge.

This is an action to recover damages from the city of New York for injuries received by the plaintiff Frank Collentine, Jr., a boy ten years of age, allegedly due to the negligence of defendant, when he fell from the roof of a building located in DeWitt Clinton Park. The accident happened at about 7:30 p. m., June 20, 1932. His father also sued for the loss of services, companionship and prospective earnings of the boy and for moneys expended and to be expended for medical care, nursing and hospitalization. At the close of the case the trial judge directed a verdict for the defendant on the ground that the boy was a trespasser on the premises and that the defendant, therefore, owed him no duty of care. From the judgment entered upon the verdict, plaintiffs appealed to the Appellate Division where it was affirmed by a divided court.

DeWitt Clinton Park is a public park owned, maintained and supervised by the defendant and located between Eleventh and Twelfth avenues on the east and west ends and between Fifty-second and Fifty-fourth streets on the north and south sides. It had been used for many years, among other things, as a playground for large numbers of children of the neighborhood during the summer months. A large athletic field, embracing nearly one-half of the entire park area, was located on the east end of the tract. Immediately to the west of the athletic field was a pavilion, a children's playground and a wading pool. Immediately to the west of these facilities was an open space adjoining which, on the west, was a building over 200 feet long north and south, 34 feet 6 inches wide and 7 feet high. There was a basement area along each side of the building about 34 feet long and approximately 6 feet below the street level. The boy, with two companions, was on top of the roof of the building above described near one of the edges when he turned to speak to one of his companions and stubbed his foot on one of the iron bars on the edge of the roof of which, he claims, he was unaware. He plunged over the side into the areaway some 15 feet below and received severe and, he claims, permanent injuries. There were some thirty other children playing on the roof when the accident happened.

In the year 1917 and prior thereto, a superstructure or pagoda had existed on top of the building with posts around the sides to hold it in position. The posts were moored to the building by three-quarter inch iron rods about ten inches in length above the floor surface. The superstructure was torn away from the iron bars and blown down by a storm that occurred in 1917, leaving the iron bars protruding all around and above the cement floor. All or a part of these bars were at the time or subsequently bent over so that at the time of the accident they extended varying distances above the floor. What had been the floor of the pagoda became and remained the roof of the building. It consisted of a concrete slab extending, on all sides, to and flush with the outside walls of the building. No railing or fence was constructed nor any means whatever maintained by the city to protect children or others using the roof from falling off. The city asserts that nothing of the sort was necessary because after the pagoda had been removed the floor was no longer used for park purposes and entrance thereto had been closed.

The evidence indicates that there was a walk fifteen feet in width extending along the north side of the athletic field, children's playground and the building in question which opened at the southwest corner of Twelfth avenue and Fifty-fourth street and a similar walk along those designated portions of the park on the southerly side emerging at the northeast corner of Twelfth avenue and Fifty-second street, both of which were open to and used by any and all persons desiring to use them. In fact, they were the only entrances to the park from Twelfth avenue. Persons entering the park from Twelfth avenue or leaving the park at the west end necessarily passed along the north and south ends of the building. Leading from these walks on each end of the building was a flight of concrete steps, a ‘grand staircase,’ about ten feet in width leading upwards to the cement floor. Evidence was introduced to indicate that from 1917 to the time of the accident there was a barricade about six feet high at the top of the stairway leading from the walk to the northerly end of the building. A number of witnesses testified...