Fitzsimmons v. State at Stonybrook

• Citation: 42 A.D.2d 636,345 N.Y.S.2d 171
• Decision Date: 25 June 1973
• Docket Number: No. 52207,52207
• 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
• Court: New York Supreme Court Appellate Division

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.

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 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. 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 in the record to sustain its finding.

Finally, as to contributory negligence, it is significant that we are dealing with an infant who is required to use only that degree of care which one of his own age, experience and intelligence is required to use under similar circumstances. This again was a factual issue (Rodford v. Sample, 30 A.D.2d 588, 290 N.Y.S.2d 30) and there is ample evidence to sustain the court's finding.

Judgment affirmed, with costs.

HERLIHY, P.J., and STALEY, SWEENEY and KANE, JJ., concur.

REYNOLDS, J., dissents and votes to reverse in the following memorandum.

REYNOLDS, Justice (dissenting).

I cannot concur with the decision for affirmance in this case and vote to reverse and dismiss the claim.

This claimant was obviously a trespasser. He came on these premises without invitation or permission. At the entrance to the university was a large, legible, conspicuous sign directing that all visitors were required to have passes and that information concerning the same could be obtained at the gatehouse ahead (see State's Exhibits B & C). No one was to enter without permission. Although these young men allege that they had been there and used the facilities of the gymnasium on several occasions, they had never even stopped at this gatehouse. Moreover, there is not a scintilla of evidence in the record that anyone at the State University ever knew that they had been there at anytime (see, 3 Warren's Negligence, § 1.02, p. 241): 'Acquiescence in a course of action may amount to permission. Continued use of property without objection on the part of the owner may thus indicate permission. This, however, obviously must be coupled with knowledge on the part of the owner that the person is so upon his premises.' (Emphasis added.) Yet the holding is that claimant had attained an implied invitation to use the premises because he had been there before, and that there had been an acquiescence by such use. Such a holding has no logical or legal basis on this record.

From the rambling dissertation by the trial court as to the status of the claimant when he was on the premises, one gleans the following: that the trial court states and believes that there should be no difference between the status of an invitee, licensee or trespasser or the duty owed to them and essentially if someone is hurt on the premises his function is to assess damages. Eventually he states that he is constrained to follow New York State Law, and then proceeds to find that whether claimant is a licensee or a trespasser that he is entitled to recover. His approach gives little confidence in the result he reached.

I suggest that under no facts in this case could he have arrived at a State acquiescence in claimant's use of the gymnasium and consequent implied permission, therefore, he could not be...