Kush by Marszalek v. City of Buffalo

CourtNew York Court of Appeals
Writing for the CourtCOOKE
Citation462 N.Y.S.2d 831,449 N.E.2d 725,59 N.Y.2d 26
Decision Date05 May 1983
Parties, 449 N.E.2d 725, 11 Ed. Law Rep. 582 David KUSH, an Infant, By Sally MARSZALEK, His Mother and Natural Guardian, et al., Respondents, v. CITY OF BUFFALO et al., Appellants.

Page 831

462 N.Y.S.2d 831
59 N.Y.2d 26, 449 N.E.2d 725, 11 Ed.
Law Rep. 582
David KUSH, an Infant, By Sally MARSZALEK, His Mother and
Natural Guardian, et al., Respondents,
v.
CITY OF BUFFALO et al., Appellants.
Court of Appeals of New York.
May 5, 1983.

Page 832

Joseph P. McNamara, Corp. Counsel, Buffalo (Carl Tronolone, Buffalo and Michael Hughes, Buffalo, of counsel), for appellants.

Page 833

Robert B. Nichols and Paul William Beltz, Buffalo, for respondents.

OPINION OF THE COURT

COOKE, Chief Judge.

A school that negligently fails to secure dangerous chemicals from unsupervised access by children will not be relieved of liability when an injury occurs and it is reasonably foreseeable that the chemicals might be stolen by children.

During 1972, as part of a summer youth program sponsored by the Buffalo Board of Education, two 15-year-old students were hired to assist the custodial staff at Kensington High School. On July 11, while the adult employees were on their coffee break, the two, unsupervised student employees went to the school's chemistry laboratory. Neither the laboratory nor its adjacent storeroom were locked. The employees took some magnesium powder and potassium nitrate from glass jars, placed the chemicals into plastic sandwich bags, and dropped the bags from a fourth story window into the bushes below. They intended to retrieve the chemicals after work that day.

The infant plaintiff, then eight years old, lived near the school and regularly played on its grounds. On the day of the accident, as he had done previously, the child walked along a trodden path behind the bushes where the chemicals had been dropped. He found the chemicals and, believing them to be sand, began playing with the chemicals and with matches he had earlier found. The chemicals exploded and the boy sustained second degree burns to his hands, arms and face.

Plaintiffs brought this negligence action and the jury found the board of education liable for the infant plaintiff's injuries. This appeal presents issues concerning the scope of defendant's duty to secure dangerous chemicals stored on school premises, whether defendant breached this duty, and, if so, whether defendant's breach proximately caused plaintiff's injury. This court now affirms, 89 A.D.2d 786, 453 N.Y.S.2d 388.

A landowner has a duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868). Defining the nature and scope of the duty and to whom the duty is owed requires consideration of the likelihood of injury to another from a dangerous condition or instrumentality on the property; the severity of potential injuries; the burden on the landowner to avoid the risk; and the foreseeability of a potential plaintiff's presence on the property (see id.; see, also, Danielenko v. Kinney Rent-A-Car, 57 N.Y.2d 198, 204-205, 455 N.Y.S.2d 555, 441 N.E.2d 1073; Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 329-330, 441 N.Y.S.2d 644, 424 N.E.2d 531; Di Salvo v. Armae, Inc., 41 N.Y.2d 80, 82-83, 390 N.Y.S.2d 882, 359 N.E.2d 391).

First deciding to whom a duty, if any, was owed, plaintiff's presence on the school grounds could be found to be foreseeable. By their very nature, a school and its playgrounds attract children. In addition, Kensington High School is located in a residential neighborhood. It is true that the boy's accident occurred when school was out of session, a factor germane to the issue of the foreseeability of his presence on the grounds. This, however, does not vitiate defendant's duty to the infant plaintiff because there was proof that school authorities were aware that children played on the school property during the summer months.

Consideration now turns to what constituted reasonable care under the circumstances and whether defendant exercised that care. Defendant maintained on the school premises a store of dangerous chemicals for use in science classes. Defendant recognized that unsupervised access to these chemicals by children created a grave risk of harm to all present on the school grounds. The dangers inherent in many of the chemicals stored at the school included flammability and toxicity.

Page 834

The superintendent of schools recognized the potential safety problem and promulgated regulations entitled "Safety in the Science Classroom and Laboratory". The regulations unambiguously provided that "[p]upils are not allowed in science classrooms, laboratories, storerooms or preparation room when the teacher is not present. These rooms should be kept locked when not in use." The regulations also stated that "[c]ombustible materials, e.g. red phosphorous and magnesium should be stored in a locked, fireproof cabinet." Finally, a chemistry teacher who had been on the school's faculty for 21 years testified that as a general practice, special security measures were necessary for chemicals that "would be likely to cause trouble * * * if gotten in poor hands."

The severity of...

To continue reading

Request your trial
237 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
    ...risks created by its concentration of allegedly unruly travelers around a congested baggage carousel”); see also Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831, 449 N.E.2d 725, 726 (1983) (“A landowner has a duty to exercise reasonable care under the circumstances in maintaining it......
  • McCarthy v. Olin Corp., No. 458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 16, 1997
    ...application when the intentional or criminal intervention of a third party or parties is reasonably foreseeable." Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831, 835, 449 N.E.2d 725, 729 (1983). Moreover, "[a]n intervening act may not serve as a superseding cause, and relieve an ac......
  • Stagl v. Delta Airlines, Inc., No. 423
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 17, 1995
    ...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 725, 726 (1983) ("A landowner has a duty to exercise reasonable care under the circumstances in maintaini......
  • Johnson v. Bryco Arms, No. 03 CV 2582(JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 3, 2004
    ...Bell v. Board of Educ. of the City of New York, 90 N.Y.2d 944, 946, 665 N.Y.S.2d 42, 687 N.E.2d 1325 (1997); Kush v. City of Buffalo, 59 N.Y.2d 26, 33, 462 N.Y.S.2d 831, 449 N.E.2d 725 (1983). Whether a superseding cause exists and whether it was foreseeable is ordinarily decided by the fac......
  • Request a trial to view additional results
237 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
    ...risks created by its concentration of allegedly unruly travelers around a congested baggage carousel”); see also Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831, 449 N.E.2d 725, 726 (1983) (“A landowner has a duty to exercise reasonable care under the circumstances in maintaining it......
  • McCarthy v. Olin Corp., No. 458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 16, 1997
    ...application when the intentional or criminal intervention of a third party or parties is reasonably foreseeable." Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831, 835, 449 N.E.2d 725, 729 (1983). Moreover, "[a]n intervening act may not serve as a superseding cause, and relieve an ac......
  • Stagl v. Delta Airlines, Inc., No. 423
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 17, 1995
    ...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 725, 726 (1983) ("A landowner has a duty to exercise reasonable care under the circumstances in maintaini......
  • Johnson v. Bryco Arms, No. 03 CV 2582(JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 3, 2004
    ...Bell v. Board of Educ. of the City of New York, 90 N.Y.2d 944, 946, 665 N.Y.S.2d 42, 687 N.E.2d 1325 (1997); Kush v. City of Buffalo, 59 N.Y.2d 26, 33, 462 N.Y.S.2d 831, 449 N.E.2d 725 (1983). Whether a superseding cause exists and whether it was foreseeable is ordinarily decided by the fac......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT