Koppel v. Hebrew Academy of Five Towns

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore THOMPSON; THOMPSON; LAWRENCE
Citation594 N.Y.S.2d 310,191 A.D.2d 415
PartiesKara KOPPEL, etc., et al., Respondents, v. HEBREW ACADEMY OF FIVE TOWNS, et al., Appellants.
Decision Date01 March 1993

Page 310

594 N.Y.S.2d 310
191 A.D.2d 415
Kara KOPPEL, etc., et al., Respondents,
v.
HEBREW ACADEMY OF FIVE TOWNS, et al., Appellants.
Supreme Court, Appellate Division,
Second Department.
March 1, 1993.

Cyperstein & Gerstner, New York City (Nathan Cyperstein and Barbara M. Berk, of counsel), for appellants.

Page 311

Stanley P. Danzig, New York City, for respondents.

Before THOMPSON, J.P., and ROSENBLATT, LAWRENCE and MILLER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Molloy, J.), dated October 5, 1990, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

As the infant plaintiff was climbing upon a 10-foot cyclone fence surrounding the defendants' property, she cut her hands on what plaintiffs allege to be the very sharp ends of the top of the fence.

The plaintiffs commenced this action, asserting, among other things, that the defendants knew or should have known that children climbed on the fence frequently, and that they caused or permitted the fence to be in a negligent and/or dangerous condition.

The defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion, finding that the defendants failed to meet their burden of entitlement to summary judgment. We disagree and reverse.

A landowner has a duty to act reasonably, maintaining its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see, Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868).

[191 A.D.2d 416] The infant plaintiff attempted to climb over the top of a ten-foot fence which, by the plaintiffs' own admissions, had visibly "razor sharp" and "dagger like ends". There is no claim, or factual support for any claim, that the sharp edges were hidden or concealed or not fully obvious. Under the circumstances of this case, the defendants breached no duty to the infant plaintiff, and we decline to impose upon the defendants a duty to protect against actions of the kind involved here.

We also note that the purpose of a 10-foot high fence with obviously sharp edges is to keep people out of the fenced-in premises. To hold that a landowner must maintain a fence so as to make it safe to climb over would encourage people to do so, and would defeat the very purpose of the fence. Moreover, an easily maneuverable fence might even invite other types of lawsuits for failure to adequately deter trespassers (see, e.g. Annotation, Duty of Landowner to Erect Fence, or Other Device to Deter Trespassing Children from Entering Third Person's Property on which Dangerous Condition Exists, 39 ALR2d 1452, 1455). Accordingly, the defendants are entitled to summary judgment dismissing the complaint.

THOMPSON, J.P., and ROSENBLATT and MILLER, JJ., concur.

LAWRENCE, J., dissents and votes to affirm, with the following memorandum:

I respectfully disagree with the majority's conclusion that the defendants are entitled to summary judgment dismissing the complaint, on the ground that it was not foreseeable that a child would attempt to climb its fence.

On October 23, 1983, the infant plaintiff Kara Koppel, then 14 years old, was injured while attempting to help a young boy off the defendants' fence, which surrounded the defendant's schoolyard and playground and was adjacent to the public sidewalk. The boy had started to climb the fence to retrieve a ball in the defendants' playground, and allegedly became endangered by sharp pointed metal on the upper...

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12 practice notes
  • Vumbaca v. Terminal One Grp. Ass'n L.P., No. 11–CV–5535.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 20, 2012
    ...seriousness of the injury, and the burden of avoiding the risk.”) (internal quotations omitted); Koppel v. Hebrew Academy of Five Towns, 191 A.D.2d 415, 594 N.Y.S.2d 310, 311 (2d Dep't 1993) (same). This duty encompasses the responsibility “to take reasonable precautions to protect [patrons......
  • Stagl v. Delta Airlines, Inc., No. 423
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 17, 1995
    ...seriousness of the injury, and the burden of avoiding the risk.") (internal quotations omitted); Koppel v. Hebrew Academy of Five Towns, 191 A.D.2d 415, 415, 594 N.Y.S.2d 310, 311 (2d Dep't 1993) (same); see also Kush v. City of Buffalo, 59 N.Y.2d 26, 29, 462 N.Y.S.2d 831, 833, 449 N.E.2d 7......
  • De Kwiatkowski v. Bear Stearns & Co., Inc., No. 96 CIV. 4798(VM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 29, 2000
    ...451, 458-59 (1980); Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868, 872 (1976); Koppel v. Hebrew Academy of Five Towns, 191 A.D.2d 415, 594 N.Y.S.2d 310, 311 (2d Dep't), leave to appeal denied, 82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d 660 (1993). See also Sommer v. Fede......
  • Gustin ex rel. Gustin v. Association of Camps Farthest Out, Inc., No. 1
    • United States
    • New York Supreme Court Appellate Division
    • December 30, 1999
    ...A.D.2d 294, 295, 680 N.Y.S.2d 674, lv. denied 93 N.Y.2d 802, 688 N.Y.S.2d 493, 710 N.E.2d 1092; Koppel v. Hebrew Academy of Five Towns, 191 A.D.2d 415, 416, 594 N.Y.S.2d 310, lv. denied 82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d We further conclude that defendants had no duty to enclose th......
  • Request a trial to view additional results
12 cases
  • Vumbaca v. Terminal One Grp. Ass'n L.P., No. 11–CV–5535.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 20, 2012
    ...seriousness of the injury, and the burden of avoiding the risk.”) (internal quotations omitted); Koppel v. Hebrew Academy of Five Towns, 191 A.D.2d 415, 594 N.Y.S.2d 310, 311 (2d Dep't 1993) (same). This duty encompasses the responsibility “to take reasonable precautions to protect [patrons......
  • Stagl v. Delta Airlines, Inc., No. 423
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 17, 1995
    ...seriousness of the injury, and the burden of avoiding the risk.") (internal quotations omitted); Koppel v. Hebrew Academy of Five Towns, 191 A.D.2d 415, 415, 594 N.Y.S.2d 310, 311 (2d Dep't 1993) (same); see also Kush v. City of Buffalo, 59 N.Y.2d 26, 29, 462 N.Y.S.2d 831, 833, 449 N.E.2d 7......
  • De Kwiatkowski v. Bear Stearns & Co., Inc., No. 96 CIV. 4798(VM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 29, 2000
    ...451, 458-59 (1980); Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868, 872 (1976); Koppel v. Hebrew Academy of Five Towns, 191 A.D.2d 415, 594 N.Y.S.2d 310, 311 (2d Dep't), leave to appeal denied, 82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d 660 (1993). See also Sommer v. Fede......
  • Gustin ex rel. Gustin v. Association of Camps Farthest Out, Inc., No. 1
    • United States
    • New York Supreme Court Appellate Division
    • December 30, 1999
    ...A.D.2d 294, 295, 680 N.Y.S.2d 674, lv. denied 93 N.Y.2d 802, 688 N.Y.S.2d 493, 710 N.E.2d 1092; Koppel v. Hebrew Academy of Five Towns, 191 A.D.2d 415, 416, 594 N.Y.S.2d 310, lv. denied 82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d We further conclude that defendants had no duty to enclose th......
  • Request a trial to view additional results

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