Nicholson v. Board of Educ of City of New York

• Citation: 330 N.E.2d 651,36 N.Y.2d 798,369 N.Y.S.2d 703
• 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.
• Decision Date: 07 April 1975
• Court: New York Court of Appeals Court of Appeals

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.

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 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 play or for any other purpose. However, young children in the neighborhood, a congested tenement house area, had for years been in the habit of congregating there after school hours. The yard adjoined the public sidewalk, from which it was separated by a high metal fence, but whose gates had been missing for years. The nearest public park providing play facilities, Sunset Park, was seven blocks away. The school playground was across the street from where Brian lived. Softball was a popular game there, but that was not all.

The record is replete with testimony of constant warnings to the principal of P.S. 94 and the board of education that firecrackers were being exploded in the yard frequently during at least 1967 and 1968 and that papers would be set on fire and bottles and garbage thrown. There had been acute episodes of such conduct during April and May, the two months preceding the injury here. Members of the 'Block Association' had met with the principal to request that either gates be installed to close the schoolyard or that supervision be provided. Neither was forthcoming.

Defendant, arguing (1) that because the locus of the accident was a schoolyard instead of a park and that, therefore, it owed no duty to plaintiff except to refrain from active negligence, and (2) that, in any event, it had no obligation other than to maintain the yard in its admittedly good physical condition, sought dismissal. The Trial Judge ruled otherwise, the jury found for the plaintiff and the Appellate Division, upon the filing of a stipulation consenting to a reduction of the verdict, affirmed, with one justice dissenting. We hold that plaintiff made out a case.

The liability in this case can not turn on the simplistic issue of whether the locus of the accident was park or schoolyard, playground or beach. Our concern must rather be with the facts and circumstances bearing on safety, foreseeability, proximate cause and other legal and behavioral factors that enter into the concept of negligence.

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