DiSalvo v. Armae, Inc.
| Citation | 359 N.E.2d 391,390 N.Y.S.2d 882,41 N.Y.2d 80 |
| Parties | , 359 N.E.2d 391 Frank J. DiSALVO, Individually and as father and natural guardian of Christine DiSalvo, an infant, Appellant, v. ARMAE, INC., doing business as Sunny Hill Farm, Inc., Respondent, et al., Defendants. (And a Third-Party Action.) |
| Decision Date | 22 December 1976 |
| Court | New York Court of Appeals |
Joseph P. Altier and E. Rochelle Kraus, New York City, for appellant.
Nathan Cyperstein and Arthur N. Seiff, New York City, for respondent.
Plaintiffs appeal in a negligence action to recover damages for personal injuries to the five-year-old infant plaintiff. They had been paying guests at a mountain resort, when the child ran into the side of a slowly moving pickup truck, as it traversed a private road dividing portions of the 130-acre resort. The trial court, after a jury trial limited to the issue of liability, found in favor of plaintiffs against the resort owner, but acquitted the owner and operator of the truck of any negligence. The Appellate Division, on the appeal of the resort owner, reversed, on the law and the facts. It dismissed the complaint, stating tersely that there was no liability because the child was, at the time of the accident, in the immediate supervision of her parents.
There should be a reversal and a new trial. The case was tried against the resort owner on the theory that it provided an unsafe arrangement for its paying guests in permitting the activities on that 1969 July Fourth day to separate or to encourage the separation of the adults and the children by a private road that was not closed to motor vehicles. This theory raised an issue of fact for a jury, and dismissal of the complaint on the law was not proper.
Infant plaintiff and her family, consisting of the father, mother, and the child's two sisters, aged 13 and 7, arrived at the resort on July 3, 1969. The next day there were festivities associated with the holiday, a motion picture show at one of the motels at the resort complex and later, after dark, there were to be fireworks. Across the road from the planned festivities was an existing layout of recreational facilities for children. The infant Christine, and many of the children, had been attracted to the play area, while their elders waited to watch the motion picture. The private road, a covered gravel-based road, was free of traffic, and the children crossed and recrossed the dividing road. Just before the accident, the pickup truck, owned by the son of the principal in defendant corporation, and operated by his young sister, both of whom worked on the premises, was proceeding in low gear at about five miles per hour. Christine was running across the road either to return to or leave the play area. When the accident occurred, she, presumably, ran blindly into the side of the truck and was caught under the rear wheel.
Even if one were to apply the principles in tort law which prevailed before the recent cases enlarging on the duty owed by occupants of land to those upon their premises a case is made out sufficiently for submission to a jury. With the advent of the enlarged rule the result is even more obvious (Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868; Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794; Barker v. Parnossa, Inc., 39 N.Y.2d 926, 386 N.Y.S.2d 576, 352 N.E.2d 880; Parish v. Henneberry Road Farms, 39 N.Y.2d 932, 386 N.Y.S.2d 580, 352 N.E.2d 884). Since Christine and her family were paying guests, a very high level of duty owed by the occupants of land would, under even the prior law, be applicable ...
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