Fitzsimmons v. State at Stonybrook, No. 52207

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: REYNOLDS; REYNOLDS
• Citation: 42 A.D.2d 636,345 N.Y.S.2d 171
• Parties: Robert FITZSIMMONS, Jr., an Infant, by Robert Fitzsimmons, Sr., His Parent, et al., Respondents, v. STATE of New York at STONYBROOK et al., Appellants. Claim
• Decision Date: 25 June 1973
• Docket Number: No. 52207

Page 171

345 N.Y.S.2d 171 42 A.D.2d 636 Robert FITZSIMMONS, Jr., an Infant, by Robert Fitzsimmons,
Sr., His Parent, et al., Respondents,
v.
STATE of New York at STONYBROOK et al., Appellants. Claim No. 52207. Supreme Court, Appellate Division, Third Department. June 25, 1973.

Page 173

Malerba, Abruzzo, Frankel & Bruckner, Huntington (Szold, Schapiro & Coster, by John I. Coster, New York City, of counsel), for respondents.

Louis J. Lefkowitz, Atty. Gen. (Jeremiah Jochnowitz, Albany, of counsel), for appellants.

Before HERLIHY, P.J., and STALEY, SWEENEY, KANE and REYNOLDS, JJ.

MEMORANDUM DECISION.

Appeal from a judgment in favor of claimants, entered July 26, 1972, upon a decision of the Court of Claims.

This is a personal injury claim brought on behalf of an infant claimant and a derivative claim brought by his father. The accident in question occurred on the campus of the State University of New York at Stonybrook on December 21, 1969 at about 7:15 P.M. The infant claimant, aged 17, his older brother and two other young men went to the campus to play basketball in the gymnasium. None were students at the University. After parking their car in a prescribed parking lot, the claimant proceeded toward the gymnasium which is to the north of the lot. Claimant, according to the testimony, cut across a grassy area instead of following the paved roadway and came in contact with a one-half inch plastic coated steel cable strung in an east-west direction about four feet off the ground. A concrete curb formed the boundary of the parking lot and the cable was situated approximately two feet to the north thereof on the grassy area. While it was dark, there was some illumination in the area. Concededly, the claimant sustained severe injuries.

The trial court found claimant was a licensee; that the State was negligent and claimant was free from contributory negligence. The State, in urging reversal on this appeal, disagrees with each of these findings and maintains that claimant was a trespasser[42 A.D.2d 637] who was guilty of contributory negligence and that the State was free from negligence.

In order to resolve this controversy it is first necessary to determine claimant's status. The record reveals that claimant, his brother and other boys had visited the campus under similar circumstances on eight or none occasions since September of 1969 up to the time of the accident. Each time they arrived by car at the main gate, stopped, and then proceeded to the parking lot. On some occasions there was a guard at the gate and on others there was not. It was always on a Sunday. They played basketball in the gymnasium, used the locker room to change their clothes and took showers afterwards.

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While they were not students and did not have a pass, no one ever refused them admission. A licensee is one who enters the premises for his own benefit without invitation, but with permission, express or implied, of the owner or person in possession. (46 N.Y.Jur., Premises Liability, § 58; 3 Warren's Negligence (2d ed.), Licensees, § 1.) On the instant record there is ample evidence to justify a conclusion that the State acquiesced in claimant's use of the gymnasium and this constituted implied permission. (Vaughan v. Transit Development Co., 222 N.Y. 79, 118 N.E. 219.) The trial court, therefore, properly determined that claimant was a licensee.

We turn next to the duty owed by the State to claimant as a licensee. The law is well established that a licensee is entitled to be warned of any danger known to the landowner which is not known to the licensee and which the licensee could not be expected to perceive in time to avoid being injured. (Brzostowski v. Coca Cola Co., 16 A.D.2d 196, 226 N.Y.S.2d 464.) There is no proof in the record that claimant was actually aware of the existence of the cable. It was dark and claimant's brother testified that he did not see the cable until he was within two feet from it. This testimony is corroborated by claimant's exhibit 6 (photograph). By its very nature, the cable would be difficult to see under ordinary circumstances. It was an artificial condition created by the State and one which was not reasonably to be anticipated by claimant. Under all of the circumstances, it is fair to assume that claimant was not aware of it and could not reasonably be expected to have perceived it. The State was, therefore, under a duty to give claimant a reasonable warning of this hidden danger. (Skzypek v. Long Island R.R. Co., 245 App.Div. 309, 280 N.Y.S. 422.) The cable was strung only a few feet from the parking lot. The State should have known of the propensities of students and others to take short cuts and that they do not always follow a prescribed path to a particular destination. (Mayer v. Temple Properties, 307 N.Y. 559, 563, 122 N.E.2d 909, 912.) The direct consequences of failure to warn the infant licensee of the presence of the strung steel cable, especially at night when it was barely visible, were clearly foreseeable. The failure to so warn claimant constituted negligence as found by the trial court. There is ample evidence...