Kush by Marszalek v. City of Buffalo

• Decision Date: 05 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.
• Court: New York Court of Appeals Court of Appeals

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.

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

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.

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 potential injuries from the misuse of chemicals is manifest. Accounts of children being maimed, blinded, or killed by playing with dangerous substances are legion. This danger could be averted with great ease and at little cost merely by storing the chemicals in a locked, fireproof cabinet--a remedy recognized in defendant's own regulations.

Thus, defendant purposely maintained a store of chemicals, some of which were inherently dangerous, and recognized that, in the environs of a school, a serious hazard would arise if deliberate safeguards were not in place. Reasonable care under the circumstances required the securing of the dangerous chemicals in such a way that their unsupervised access could not be readily obtained by children (cf. Kingsland v. Erie County Agric. Soc., 298 N.Y. 409, 426, 84 N.E.2d 38). In light of the foreseeability of the risk and potential severity of harm to others engendered by a breach of this duty and the ease with which this duty could be satisfied, the jury acted rationally in finding that defendant failed to exercise reasonable care under the circumstances by failing to secure the dangerous chemicals from unsupervised access by school children.

Defendant's breach of duty was comprised of two elements. First, defendant failed to adequately supervise its two student employees. ¹ The director of the summer employment program testified that "the key word is supervision" in the operation of the program. One of the program's co-ordinators admitted that he had expected the two student employees to be under complete supervision at all times. Nevertheless, the adults charged with overseeing the students left them alone for 30 minutes each day when they went to the school's basement for their coffee break. The students were told to stand by until the adults returned. It was during one of these periods that the students took the chemicals that eventually caused plaintiff's injuries.

Defendant's argument that it should be liable only...