Leone v. City of Utica

• Decision Date: 28 February 1979
• Citation: 66 A.D.2d 463,414 N.Y.S.2d 412
• Parties: Anthony LEONE, an infant under Fourteen (14) years of age, and Rosemary Leone, his mother, Respondents, v. The CITY OF UTICA, New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 412

414 N.Y.S.2d 412

66 A.D.2d 463

Anthony LEONE, an infant under Fourteen (14) years of age and Rosemary Leone, his mother, Respondents, v. The CITY OF UTICA, New York, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Feb. 28, 1979.

Lawrence P. George, Corp. Counsel, Utica (Bernard Samuels, Syracuse, of counsel), for appellant.

Wolfe & Kalil, Utica (Earle C. Bastow, Utica, of counsel), for respondents.

Before MOULE, J. P., and CARDAMONE, DILLON, HANCOCK and SCHNEPP, JJ.

DILLON, Justice:

We are here concerned with the liability which may befall a municipality for injuries sustained by a child on railroad property located adjacent to a city-owned and regularly-used park and playground. While the degree of care to be imposed upon a municipality in a particular case is necessarily dependent upon the attendant circumstances and is thus ordinarily a jury question (Caldwell v. Village of Island Park, 304 N.Y. 268, 107 N.E.2d 441), it is the claim of the defendant City of Utica that the plaintiffs should be foreclosed from recovery as a matter of law. We disagree.

Gilmore Park, an irregularly-shaped parcel of land consisting of approximately nine acres, was acquired by the city in 1948. The major portion of its east line fronts on Hazelhurst Avenue and on the west it borders the Erie Lackawanna Railroad property for a distance of 717.73 feet. Its southern boundary adjoins a small strip of privately-owned land which in turn borders Zoar Avenue, an unimproved street.

Within the easterly portion of the park and transversing its entire length from north to south is a land depression or ravine which varies from 25 to 30 feet in width and from four to eight feet in depth. Although the park land west of the ravine is heavily wooded and rugged, it contains several footpaths, a "tree fort" and rope swings tied to trees. Many of the footpaths lead to the railroad property along the western line of the park, and it also appears that some lead to the park's southern boundary. The land south of the park, including the Zoar Avenue extension and the property to its south, is also wooded and rugged in similar contour to that of the westerly park land.

In 1969 the city developed a playground in the southeastern corner of the park. Neither the playground nor the larger park area was enclosed by fencing and thus there were no formidable obstacles or barriers between the playground and the remainder of the park, or between the park and the railroad property. The playground was constructed for the use of children residing in a neighboring housing complex owned by the city's municipal housing authority and known as Gilmore Village. While there had been children's outdoor play equipment within the housing complex at one time, it was removed upon development of the park playground, and thereafter the children were discouraged from outdoor play on the project grounds.

During the afternoon of August 24, 1970, eight-year old Anthony Leone left his apartment in Gilmore Village and crossed Hazelhurst Avenue to play in Gilmore Park. While city personnel had been assigned to the playground during the summer of 1970, they did not appear after August 15th. Anthony, who had played in the park nearly everyday that summer, met his friends in the playground and they walked through the ankle-deep water in the ravine and into the woods where they played and chased each other. Upon hearing a train whistle he and the other children, according to his testimony, ran from the park in a westerly direction to the railroad tracks to wave at the trainmen. He climbed up a five-foot incline to reach the railway and began to run after the northbound, slowly-moving train. He was near the end of the train when he slipped and fell beneath it. The other children ran away and he crawled a short distance toward the path which he had used to reach the tracks. Help arrived within a few minutes and Anthony was removed to a hospital where his right leg was amputated.

Although Anthony testified that the accident occurred near the middle of the park's west boundary line, a police officer and an ambulance attendant each testified that Anthony was found south of the Zoar Avenue extension, approximately 220 to 250 feet southwesterly of the southwest corner of Gilmore Park. Based upon the latter testimony as to Anthony's location following the accident, the city takes the view that he arrived on the railroad property from privately-owned land and not directly from its park land.

Initially, the city urges that it owed no duty to Anthony. It is well settled, however, that the "city owes to those who use its parks a duty of ordinary care against foreseeable danger (see, e. g., Caldwell v. Village of Island Park, 304 N.Y. 268, 274, 107 N.E.2d 441)." (Scurti v. City of New York, 40 N.Y.2d 433, 445, 387 N.Y.S.2d 55, 61, 354 N.E.2d 794, 800 (Breitel, C. J., concurring in part and dissenting in part); see Lukasiewicz v. City of Buffalo, 55 A.D.2d 848, 390 N.Y.S.2d 341). Consistent with that duty, the degree of care to be exercised must take into account the known "propensity" of children "to roam and climb and play" (Collentine v. City of New York, 279 N.Y. 119, 125, 17 N.E.2d 792, 795).

The record sufficiently establishes that young children often played in the wooded area of the park west of the creek and it may fairly be inferred that the city was aware of that activity and made no effort to prevent it. Additionally, the city had knowledge of the location of the railroad tracks and that pathways in the park lead to those tracks. Certainly the jury may have found, in view of the foreseeable danger of serious injury presented by the location of the railroad tracks (cf. Baltimore & Ohio Railroad Co. v. Goodman, 275 U.S. 66, 69, 48 S.Ct. 24, 72 L.Ed. 167), that the failure of the city to fence its playground or park, or to supervise the use of the park or to take some other reasonable precaution to prevent or discourage children from going onto the railroad property, constituted a lack of ordinary care (cf. Jacques v. Vil. of Lake Placid, 39 A.D.2d 163, 332 N.Y.S.2d 743, affd. 32 N.Y.2d 739, 344 N.Y.S.2d 641, 297 N.E.2d 521). While the city might have introduced proof showing that it would have been unduly burdensome to take measures to avoid the risk of harm presented here (see Scurti v. City of New York, supra, 40 N.Y.2d p. 442, 387 N.Y.S.2d p. 59, 354 N.E.2d p. 798), it did not do so.

The city also argues that its conduct was not the proximate cause of Anthony's injury. This court is bound to assume however, that the jury adopted that view of the evidence most favorable to the prevailing parties (Calabrese v. County of Ontario, 58 A.D.2d 1008, 397 N.Y.S.2d 493; Colegrove v. City of Corning, 54 A.D.2d 1093, 388 N.Y.S.2d 964). Anthony testified that he was playing in the park when he heard the train whistle and he then ran along one of the footpaths directly to the tracks. While the path Anthony used may have led from the park over private property and then to the tracks, neither the actual place of his exit from the park nor the precise location of the accident may be said to be so remote as to require a determination, as a matter of law, that the injury was not proximately caused by the city's negligence. The jury properly may have found that the city's breach of duty was a substantial factor in bringing about this foreseeable occurrence (see Quinlan v. Cecchini, 41 N.Y.2d 686, 690, 394 N.Y.S.2d 872, 875, 363 N.E.2d 578, 581; Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794, Supra ). Since there were no barriers or apparent line of demarcation between the park land and the contiguous property, it could reasonably have been anticipated that an infant, attracted by a train whistle, might take a path leading from the park and across that property to the tracks. The jury permissibly could have found that a fence along the boundary between the park and the private property would have prevented this accident. Thus viewed, the issue of liability was properly submitted to the jury as a question of fact (see Lukasiewicz v. City of Buffalo, 55 A.D.2d 848, 849, 390 N.Y.S.2d 341, 342, Supra ).

Other issues raised by the city require comment. It is argued that there should be a reversal because the notice of claim served pursuant to section 50-e of the General Municipal Law failed accurately to describe the place of the accident. The notice states, in pertinent part, that the accident occurred "on the extension of Zoar Street at the Erie Lackawanna Railroad tracks." The only proof offered by the plaintiffs concerning the location of the accident, however, indicated that it took place approximately 500 feet north of the area identified in the notice of claim.

The purpose of requiring a notice of claim is to assure the recipient "an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available. (Citations omitted.)" (Teresta v. City of New York, 304 N.Y. 440, 443, 108 N.E.2d 397, 398.) Here the notice furnished information sufficient to enable the city to conduct a proper and timely investigation of the accident. Indeed, the evidence introduced by the city indicated that the accident did, in fact, occur near the Zoar Avenue extension as stated in the notice of claim.

The disparity between the notice and the plaintiffs' testimonial version of the accident might well have been earlier discovered had the city exercised its opportunity to conduct a pretrial examination of Anthony. In any event, the statute authorizes the court to correct or disregard a defective notice of claim if "it shall appear that the other party was not prejudiced thereby" (General Municipal Law, § 50-e, subd. 6). In the circumstances presented, it may not be said that any error in the notice prejudiced the city (see Rivero v. City of New York, 290 N.Y. 204,...