Nicholson v. Board of Educ of City of New York

CourtNew York Court of Appeals
Writing for the CourtPER CURIAM; FUCHSBERG; BREITEL; FUCHSBERG, J., concurs in a separate opinion in which WACHTLER
Citation330 N.E.2d 651,36 N.Y.2d 798,369 N.Y.S.2d 703
Decision Date07 April 1975
Parties, 330 N.E.2d 651 Brian NICHOLSON, an Infant, by His Mother, Margaret Nicholson, Respondent, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Appellant.

Page 703

369 N.Y.S.2d 703
36 N.Y.2d 798, 330 N.E.2d 651
Brian NICHOLSON, an Infant, by His Mother, Margaret
Nicholson, Respondent,
v.
BOARD OF EDUCATION OF the CITY OF NEW YORK, Appellant.
Court of Appeals of New York.
April 7, 1975.

Adrian P. Burke, Corp. Counsel (Leonard Koerner and L. Kevin Sheridan, New York City, of counsel), for appellant.

Joseph P. Napoli, New York City, for respondent.

Page 704

PER CURIAM.

The decisive principle is that a municipality aware that its park or playground is being used by visitors as a site for criminal activities, such as the unlawful discharge of fireworks, will be liable for resulting injuries if it fails to take appropriate preventative measures (see Caldwell v. Village of Is. Park, 304 N.Y. 268, 275, 107 N.E.2d 441; see, generally, 42 N.Y.Jur., Parks and Recreation Centers, §§ 73, 91). This is derived from the general rule that a municipality is under a duty to maintain its park and playground facilities in a reasonably safe condition (see Caldwell v. Village of Is. Park, 304 N.Y. 268, 273, 107 N.E.2d 441 Supra, and cases cited).

In the Caldwell case (supra) this court sustained the infant plaintiff's recovery for an eye injury suffered on the defendant's park bench from the discharge of a Roman candle by a group of boys on Independence Day. The court found sufficient evidence in the record to sustain the jury's conclusion that the municipality had constructive if not actual notice of the illegal and ultrahazardous activity (p. 275, 107 N.E.2d 441). Similarly, in the present case, the defendant board had on numerous occasions been informed that firecrackers were being exploded in the schoolyard.

That the schoolyard was not run as a supervised afterschool play area and the infant plaintiff and the other children were not expressly invited to play there does not remove this case from the reach of Caldwell. The invitation can be implied from the fact of actual notice to the board that children had for years been using the schoolyard as a playground, and the board's failure to make any effort to exclude them (see 42 N.Y.Jur., Parks and Recreation Centers, § 73, at pp. 602--603; cf. Prosser, Torts (4th ed.), § 59, especially n. 69, at p. 368). Indeed, members of the community, concerned about the firecrackers, had requested that the missing gates of a high metal fence separating the schoolyard from the sidewalk be reconstructed so that the yard could be closed. Defendant failed to take this or any other protective measure, and as a consequence, an exploding firecracker put out the eye of the seven and a-half-year-old plaintiff.

It would be retrogressive, and would weaken well-established doctrine sustaining liability, especially to children, for injuries due to hazards in public or publicly-maintained places, to import that the present case involves a new or major step in imposing liability.

Accordingly, the judgment of Supreme Court should be affirmed, with costs.

FUCHSBERG, Judge (concurring).

On a day in June after school hours in 1968, seven-year-old Brian Nicholson went into the schoolyard at P.S. 94 in Brooklyn at 4:30 P.M. and sat down in a corner. Ten other children, each about 12 years of

Page 705

age, were present, Brian heard his name called. When he turned around he was hit in the left eye by a firecracker. After several successive operations, the eye was removed and an artificial one fitted.

Brian was not a student of P.S. 94 nor of any formal afterschool program conducted by it. The schoolyard was not run as an official, supervised area for afterscho play and no school personnel were assigned to be present to supervise...

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20 practice notes
  • Gottesman v. Graham Apartments, Inc., No. 65447/2011.
    • United States
    • New York Civil Court
    • April 5, 2015
    ...(1980) ; Quinlan v. Cecchini, 41 N.Y.2d 686, 394 N.Y.S.2d 872, 363 N.E.2d 578 (1977) ; Nicholson v. Board of Educ. of City of New York, 36 N.Y.2d 798, 369 N.Y.S.2d 703, 330 N.E.2d 651 (1975) ; Caldwell v. Island Park, 304 N.Y. 268, 107 N.E.2d 441 (1952) ; Martinez v. Lazaroff, 66 A.D.2d 874......
  • Hedges v. E. River Plaza, LLC
    • United States
    • United States State Supreme Court (New York)
    • July 23, 2013
    ...(2010); Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 (1994); Nicholson v. Board of Educ. of City of NY, 36 N.Y.2d 798, 802–803, 369 N.Y.S.2d 703, 330 N.E.2d 651 (1975); [981 N.Y.S.2d 899]Phelps v. Boy Scouts of Am., 305 A.D.2d 335, 336, 762 N.Y.S.2d 32 (1st......
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    • July 23, 2013
    ...v. Higgins, 15 N.Y.3d 903, 905 (2010); Mirand v. City of New York, 84 N.Y.2d 44, 49 (1994); Nicholson v. Board of Educ. of City of N.Y., 36 N.Y.2d 798, 802-803 (1975); Phelps v. Boy Scouts of Am., 305 A.D.2d 335, 336 (1st Dep'tPage 82003). Under these circumstances, Bob's Discount Furniture......
  • C. B. v. Inc. Vill. of Garden City, 2018-05101
    • United States
    • New York Supreme Court Appellate Division
    • May 19, 2021
    ...(see Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294 ; Nicholson v. Board of Educ. of City of N.Y., 36 N.Y.2d 798, 799, 369 N.Y.S.2d 703, 330 N.E.2d 651 ). "This duty ‘includes not only physical care of the property but also prevention of ultrahazardous ......
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20 cases
  • Gottesman v. Graham Apartments, Inc., No. 65447/2011.
    • United States
    • New York Civil Court
    • April 5, 2015
    ...(1980) ; Quinlan v. Cecchini, 41 N.Y.2d 686, 394 N.Y.S.2d 872, 363 N.E.2d 578 (1977) ; Nicholson v. Board of Educ. of City of New York, 36 N.Y.2d 798, 369 N.Y.S.2d 703, 330 N.E.2d 651 (1975) ; Caldwell v. Island Park, 304 N.Y. 268, 107 N.E.2d 441 (1952) ; Martinez v. Lazaroff, 66 A.D.2d 874......
  • Hedges v. E. River Plaza, LLC
    • United States
    • United States State Supreme Court (New York)
    • July 23, 2013
    ...(2010); Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 (1994); Nicholson v. Board of Educ. of City of NY, 36 N.Y.2d 798, 802–803, 369 N.Y.S.2d 703, 330 N.E.2d 651 (1975); [981 N.Y.S.2d 899]Phelps v. Boy Scouts of Am., 305 A.D.2d 335, 336, 762 N.Y.S.2d 32 (1st......
  • Hedges v. East River Plaza, LLC, Index No. 101854/2012
    • United States
    • United States State Supreme Court (New York)
    • July 23, 2013
    ...v. Higgins, 15 N.Y.3d 903, 905 (2010); Mirand v. City of New York, 84 N.Y.2d 44, 49 (1994); Nicholson v. Board of Educ. of City of N.Y., 36 N.Y.2d 798, 802-803 (1975); Phelps v. Boy Scouts of Am., 305 A.D.2d 335, 336 (1st Dep'tPage 82003). Under these circumstances, Bob's Discount Furniture......
  • C. B. v. Inc. Vill. of Garden City, 2018-05101
    • United States
    • New York Supreme Court Appellate Division
    • May 19, 2021
    ...(see Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294 ; Nicholson v. Board of Educ. of City of N.Y., 36 N.Y.2d 798, 799, 369 N.Y.S.2d 703, 330 N.E.2d 651 ). "This duty ‘includes not only physical care of the property but also prevention of ultrahazardous ......
  • Request a trial to view additional results

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