Martinez v. Kaufman-Kane Realty Co., Inc., KAUFMAN-KANE

• Decision Date: 12 June 1974
• Docket Number: KAUFMAN-KANE
• Citation: 316 N.E.2d 336,359 N.Y.S.2d 51,34 N.Y.2d 819
• Parties: , 316 N.E.2d 336 Roulmaldo MARTINEZ, an Infant by His Mother and Natural Guardian, Rosa Martinez, et al., Respondents, v.REALTY CO., INC., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 51

359 N.Y.S.2d 51

34 N.Y.2d 819, 316 N.E.2d 336

Roulmaldo MARTINEZ, an Infant by His Mother and Natural Guardian, Rosa Martinez, et al., Respondents, v. KAUFMAN-KANE REALTY CO., INC., Appellant.

Court of Appeals of New York.

June 12, 1974.

Benjamin H. Siff, J. Robert Morris, and Thomas R. Newman, New York City, for appellant.

Jacob D. Fuchsberg and Charles F. McGuire, New York City, for respondents.

MEMORANDUM.

Since injury to infant plaintiff resulted from an artificial, dangerous condition on defendant's property, the decisive issue was the foreseeability of the risk of the accident which resulted in the injury. Under the facts of this case, the duty of care owed plaintiff could be correlated to the risk of harm reasonably to be perceived, regardless of status, whether that of trespasser, licensee, or invitee in the traditional sense (see Restatement, 2d, Torts, § 339; Prosser, Torts (4th ed.), § 59). Defendant's conceded neglect turned the fire escape ladder into a 'trap'; the question remaining was the foreseeability of one such as plaintiff coming into contact with the ladder (see Restatement, 2d, Torts, § 339, subd. (a)). It is relevant too that the fire escape, a potentially lethal trap, overhung a public way which children frequently used as their playground (see Mayer v. Temple Props., 307 N.Y. 559, 565, 122 N.E.2d 909, 913; Restatement, 2d, Torts, § 369; cf. § 368, including Comments and Iiiustrations). The question being close, submission to the jury was required, and its verdict for the plaintiff may not be disturbed.

WACHTLER, Judge (concurring).

It is evident that the respondent in this case was a trespasser. If I favored continued adherence to the legal ramifications attached to that classification in New York, I would be constrained to reverse in thid case (Beauchamp v. New York City Housing Auth., 12 N.Y.2d 400, 405, 240 N.Y.S.2d 15, 19, 190 N.E.2d 412, 415). However, for the reasons so well delineated by the California Supreme Court in Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, I feel the legal classifications of trespasser, guest and invitee, no longer have validity.

In the case at bar, the majority has extended the definition of 'trap' to include a defective fire escape hanging over the grillwork of a store, 13 feet above the ground. Obviously, any negligently maintained property that later causes injury to a person can, with hindsight, be considered to have been a trap. And if this fire escape is deemed to be a 'trap' for children, I know of no negligently maintained property in a congested urban area that could not be considered such a trap.

It appears to me that by continuously expanding on...