Molnar v. Slattery Contracting Co.

Decision Date12 May 1959
Citation185 N.Y.S.2d 449,8 A.D.2d 95
PartiesJohn MOLNAR, Sr., as Guardian ad Litem of John Molnar, Jr., and John Molnar, Sr., individually, Plaintiffs-Respondents, v. SLATTERY CONTRACTING CO., Inc., Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

George A. Garvey, New York City, of counsel (Garvey & Conway, New York City), for appellant.

James P. McGarry, New York City, for respondents.

Before BREITEL, J. P., and RABIN, M. M. FRANK, VALENTE and STEVENS, JJ.

STEVENS, Justice.

This is an appeal from a judgment entered in a negligence action, after trial, in favor of the infant plaintiff in the sum of $12,211, and in favor of the guardian ad litem, his father, in the sum of $500.

The accident happened about 9 a. m., August 1, 1953, and occurred as a result of the fall of the infant plaintiff into an excavation. The infant, then six years of age, and his cousin, a boy of about eight and one-half years of age, while returning home from a barbershop, went along an excavated area which ultimately became what is known as the Cross Bronx Expressway. At the point, not an intersection, the boys stopped to look into the excavation. The infant plaintiff testified he wanted to show his cousin how deep the excavation was, so he picked up a rock and as he was about to throw it the earth gave way and he fell into the excavation which at that place was about 12 to 15 feet deep with a slant or slope of 30 degrees. The infant sustained a laceration of the scalp requiring six sutures, sprain of the left elbow, bruises, abrasions, etc., with medical bills, including emergency hospital treatment, totalling approximately $250.

It was undisputed that it was not necessary for the boy to travel that way, or to cross the excavation in order to reach his home. The point of his fall was some 20 to 25 feet from the nearest public street on land which had been acquired by the State.

Testimony by and on behalf of the plaintiff was to the effect that there were no barricades, fences or warning signs in that immediate area and that a footpath ran alongside the excavation which many persons used to the knowledge of the defendant. Moreover, a spring in the general vicinity had weakened the wall of the excavation near the point of the accident.

Testimony for the defendant, a construction contractor, was that barricades in the form of wooden horses had been placed at nearby spots which on several occasions had been torn down, damaged or removed by persons unknown, and replaced by the defendant whenever it learned of the condition. Defendant's witness had no personal knowledge if barricades were at that location on the morning in question.

The appellant on this appeal argues (1) the plaintiff being a trespasser, or at most a licensee, the complaint should have been dismissed. The place where the accident occurred was not part of what had been formerly an intersection or part of a public street, and at this time the property had not yet been dedicated to a public use.

It argues further (2) that the court committed substantial errors in its charge and in its refusal to charge which require a reversal of the judgment, and, lastly, (3) the damages awarded the infant plaintiff were grossly excessive.

The respondents urge that the errors in the charge, if any, were insignificant and the award was not excessive. They assert (1) 'The accident occurred on a patently public way whereat an attractive nuisance imposes liability on its creator to a child of tender years'; (2) that the defendant, having created a dangerous condition and trap without providing required warnings, must be held responsible, and (3) that there was a statutory duty on the defendant to erect suitable obstructions.

In light of the major contentions of the respective parties, consideration must be given to the possible legal status of the infant and the nature of the obligation or duty, if any, owed to one in a particular category.

Preliminary to such consideration, reference might be made to some portions of the charge and the refusals to charge to which the defendant took exception.

The court charged: 'In some states there is a theory of law called the attractive nuisance theory * * * New York State does not recognize that doctrine, but they go pretty close to it in some respects, and they say that people owning property or having apparatus or machinery or building or anything in close proximity to a public place or abutting a public place must take that into consideration and avoid a situation which might possibly hurt children in the area.'

The court's reference and charge as to traps was not clear, nor was its observation as to the duty owed a licensee or trespasser.

The court refused to charge that there was no obligation by statute or ordinance to provide barricades at the place of the accident, contenting itself with the statement that no one had called its attention to any specific statute involved and it was not aware of any. In light of the record, the charge requested should have been given, though the existence or nonexistence of a statute would not necessarily be determinative.

While some of the New York decisions might seem to be based upon the attractive nuisance doctrine, despite the express rejection of the doctrine in this State (Morse v. Buffalo Tank Corp., 280 N.Y. 110, 19 N.E.2d 981), closer analysis reveals that they involve a recognition of the propensities of children to play, climb, etc. (Collentine v. City of New York, 279 N.Y. 119, 125, 17 N.E.2d 792, 795) and a recognition of a lack of such awareness on their part of the dangers involved as would be present in a more mature person. Also, as Warren points out, some of the 'confusion arises from a failure to distinguish clearly between the rights of invitees, licensees and trespassers.' (3 Warren, Negligence, § 133, 2(b).

Even in such cases 'The defendant may not be cast in damages, unless it appears (1) that the appliance attracted children; (2) that it was inherently dangerous, or led or attracted the child into or upon another object inherently dangerous; and (3) that defendant knew or ought to have known of these things.' Parkes v. New York Telephone Co., 120 Misc. 459, 460, 198 N.Y.S. 698, 700, affirmed 207 App.Div. 869, 201 N.Y.S. 930.

In light of the reference by the court...

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    ...a judgment and a new trial in the interests of justice. Bacon v. Celeste, 30 A.D.2d 324, 292 N.Y.S.2d 541; Molnar v. Slattery Contracting Co., 8 A.D.2d 95, 100, 185 N.Y.S.2d 449, 454. Accordingly, although I take a dim view of the plaintiffs' case, I conclude the foregoing errors mandate a ......
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    ...of a proper request, in the interests of justice and its public administration, a new trial is merited (Molnar v. Slattery Contracting Co., 8 A.D.2d 95, 100, 185 N.Y.S.2d 449, 455). If there were no more to the case than a conflict in testimony given on different occasions there might have ......
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