Korzenski v. Dunkirk Radiator Corp.

• Decision Date: 01 July 1963
• Citation: 19 A.D.2d 770,241 N.Y.S.2d 737
• Parties: Daniel KORZENSKI, an Infant, by his Guardian ad Litem, Bernard Korzenski, Respondent, v. DUNKIRK RADIATOR CORPORATION, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 737

241 N.Y.S.2d 737

19 A.D.2d 770

Daniel KORZENSKI, an Infant, by his Guardian ad Litem, Bernard Korzenski, Respondent, v. DUNKIRK RADIATOR CORPORATION, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Argued April 4, 1963.

Decided July 1, 1963.

Palmer, Spann & Hannum, Dunkirk, for appellant; Anthony J. Spann, Dunkirk, of counsel.

Kenneth W. Glines, Fredonia, for respondent; Robert L. Manuele, Fredonia, of counsel.

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HALPERN and HENRY, JJ.

MEMORANDUM.

Plaintiff received a substantial verdict following a jury trial. There was proof that a third party with the knowledge and consent of defendant excavated a hole on its land approximately 800 feet long, 160 feet wide and 12 feet deep. Through the years water accumulated in the excavation to form a small pond and unidentified persons placed fish therein. There was evidence that various persons fished about the shore of the pond. The infant plaintiff was standing some twelve feet behind one of these fishermen. The latter in casting his hook and line into the water caused them to arc behind him and away from the water. The hook became imbedded in an eye of the infant, resulting in the eventual loss thereof. The jury was instructed as to the duties and responsibilities of defendant to the infant in the event they found the latter to be a trespasser, licensee or invitee. Inasmuch as there was a general verdict, the finding of the jury--if one was made--as to the status of the infant may not be determined. We conclude that upon the proof no trier of the facts could find by any rational process that the infant was an invitee. If found to be a licensee, then defendant owed him "only the duty to exercise reasonable care to disclose * * * dangerous defects known to defendant and not likely to be discovered by plaintiff". (Krause v. Alper, 4 N.Y.2d 518, 521, 176 N.Y.S.2d 349, 351, 151 N.E.2d 895, 897). The injury sustained was not caused by any affirmative act of negligence on the part of defendant or by the existence of any trap or pitfall on its property (Brzostowski v. Coca-Cola Co., 16 A.D.2d 196, 198, 199, 226 N.Y.S.2d 464, 467, 468). The injury was caused by the act of the fisherman and this was an unforeseeable intervening cause which produced a result which could not have been foreseen by defendant thereby relieving the latter from liability (Prosser on Torts, 2d Ed., p. 266; Bolsenbroek v. Tully & DiNapoli, 12 A.D.2d 376, 212 N.Y.S.2d 323, aff'd 10 N.Y.2d 960, 224 N.Y.S.2d 280, 180 N.E.2d 61).

Judgment reversed on the law and facts without costs of this appeal to either party and complaint dismissed, without costs.

All concur, except HALPERN, J., who dissents from the dismissal of the complaint and votes to grant a new trial in an opinion.

HALPERN, J. (dissenting in part).

I dissent from so much of the decision of the court as dismisses the complaint in this case. I believe that the plaintiff made out a prima facie case which warranted submission to the jury. The trial court's charge in this case did not spell out as fully as it should have, the applicable theory of recovery discussed below and therefore it would be difficult to uphold the verdict in favor of the plaintiff. In any event, the majority of this court is in favor of reversing the judgment on the facts [i. e., the weight of the evidence] and, since that decision is final, no useful purpose would be served by further discussion of the weight of the evidence. The only remaining question is whether the plaintiff should be given a new trial or whether the complaint should be dismissed. To that question, this dissent is addressed.

For the purpose of determining whether the plaintiff has made out a prima facie case entitling the plaintiff to submission to the jury or, in this case, to resubmission upon a new trial, the court is bound to 'take the facts in a light most favorable to the plaintiff and, in determining whether the facts proved constitute a cause of action, give him the benefit of every favorable inference which may reasonably be drawn' (Osipoff v. City of New York, 286 N.Y. 422, 425, 36 N.E.2d 646, 647, 136 A.L.R. 1354; see also Sagorsky v. Malyon, 307 N.Y. 584, 586, 123 N.E.2d 79).

When the evidence in this case is viewed in the light most favorable to the plaintiff, in accordance with this rule, it establishes the following set of facts: The defendant was engaged in the manufacture of radiators at a plant in Dunkirk, New York. A waste product of the defendant's manufacturing process was core sand. This sand piled up in a huge heap of the defendant's property south of its plant. In 1949, the defendant allowed the Niagara Mohawk Power Corporation to remove the sand, in order to use it as fill at a nearby site, and it also allowed the company to excavate part of the land. As a result, a hole approximately 600 feet wide, 1000 feet long and 12 feet deep was created on the defendant's land. Immediately thereafter, the excavation filled with water from springs and from a drain from a neighboring manufacturing plant. This formed a large pond 1000 feet long running from east to west, approximately 100 yards south of the defendant's plant.

Almost from the time the excavation was filled with water, the pond was used by the residents of Dunkirk, some adults but chiefly children, as a recreation area. Neighbors stocked the pond with fish and the pond was used for fishing, boating, swimming and ice skating. These activities continued for about 9 years prior to the date of the accident which is the basis of this action, with the full knowledge of the defendant's executives. No fence was placed around the pond, although a fence separated the pond from the plant. No signs were erected forbidding the use of the pond or of the surrounding land for recreational activities. The children were driven away from the north side of the pond close to the plant but they were never sent away from the south side of the pond. In fact, they were directed to go to the south side of the pond when they were chased away from the plant. The children were never asked to stop fishing in the pond.

The southwest corner of the pond was the area used for fishing. At this point, there was a beach which was even with the level of the water, about 3 feet wide and about 12 to 15 feet long. The ground inclined upward from the beach area to a path which encircled the pond. The path was about 6 to 9 feet from the beach. There was a row of willow trees beyond the path, the branches of which overhung the path. Children were accustomed to play in and about that area, and both children and adults regularly used the path.

The setting was a highly dangerous one in which to cast for fish. As Frederick Jesse, the boy who was involved in the accident, explained, in casting, his rod would be extended to the rear several feet over his shoulder and the fishing line would frequently become snagged in the branches of the willow trees overhanging the path. He would then pull the line forward sharply, usually succeeding in disengaging the line and completing his cast. However the danger of a mishap was constantly present. The violence with which the line was disentangled might result in the line and hook flying free and striking some one in the vicinity, or it might result in the line breaking and, upon the release of the tension, the remaining piece of line with the hook on it striking a passerby or a spectator. The danger was increased by the fact that the fishermen were children who were not skilled in the art of fishing and that a large number of children would engage in fishing at the same time, close together. While the manner in which the children engaged in fishing was not technically 'casting', it involved the backward and forward motion of casting the line with a bobber or a similar attachment thereon into the pond to a point which was a considerable distance from the beach. Although the dangerous nature of this activity in the particular setting was apparent to any experienced adult observer, the defendant mede no effort to stop it.

The plaintiff was 16 years of age at the time of the accident on April 30, 1957. The house in which he lived adjoined the westerly boundary of the defendant's property. He had played, fished, boated and ice skated at the pond from the time it had been created. On the day of the accident, at about 7 p. m., the plaintiff left his home and walked along the path encircling the pond until he reached a point close to, and behind, the fishing beach. He stopped at that point to help a younger boy who was playing on the path.

Between eight and a dozen children were then fishing in the pond. One of these was Frederick Jesse, then 14 years of age. Jesse drew his 6 foot fiber glass rod back over his shoulder and, as he began the forward thrust of his cast, his line became entangled in the branches of a willow tree behind him. Nevertheless Jesse attempted to continue his cast. As he pulled the line forward, the line broke near the fishhook and the hook and a short part of the line to which it was attached were released with great force and the hook struck ...