Scurti v. City of New York

• Decision Date: 17 June 1976
• Citation: 354 N.E.2d 794,387 N.Y.S.2d 55,40 N.Y.2d 433
• Parties: , 354 N.E.2d 794 Joseph SCURTI, as Administrator of the Estate of John J. Scurti, Deceased, Appellant, v. CITY OF NEW YORK et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 55

387 N.Y.S.2d 55

40 N.Y.2d 433, 354 N.E.2d 794

Joseph SCURTI, as Administrator of the Estate of John J.

Scurti, Deceased, Appellant, v. CITY OF NEW YORK et al., Respondents.

Court of Appeals of New York.

June 17, 1976.

Robert J. Bohner, Rego Park, for appellant.

W. Bernard Richland, Corp. Counsel, New York City (Ellen Kramer Sawyer and L. Kevin Sheridan, New York City, of counsel), for City of New York, respondent.

Robert M. Peet, New York City, for New York Connecting Railroad Co. and others, respondents.

George M. Onken, Jamaica, William J. Pallas and Laurence H. Rubin, Jamaica, of counsel, for Long Island Rail Road Co. and another, respondents.

WACHTLER, Judge.

Today the court has held that the liability of a landowner to one injured upon his property should be governed, not by the ancient and antiquated distinctions between trespassers, licensees, and invitees decisive under common law, but rather by the standard applicable to negligence cases generally, i.e., the 'standard of reasonable care under the circumstances where by foreseeability shall be a measure of liability' (Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 568, 352 N.E.2d 868, 872). This case involves the further application of that standard and consideration of those factors, conclusive under prior law, which may continue to have some relevance in determining a landowner's liability for injury to one who concededly entered his property without permission.

On June 26, 1968 John Scurti, a 14-year-old high school student accompanied by another boy, entered a railroad yard through a hole in the fence at the rear of a playground located in Glen Ridge Park in Queens County. He then climbed on the top of a freight car on mainline track No. 5 and was electrocuted when he came in contact with a high-voltage catenary wire used to supply power to the locomotives.

This suit, commenced by Scurti's father as administrator of his son's estate and in his individual capacity, seeks damages for wrongful death, pain and suffering and loss of services. At the trial there was proof that the defendant New York Connecting Railroad Co. owns the yard and the tracks; that the defendants Penn Central Co., New York, New Haven and Hartford Railroad Co. and its trustees own the train and operate mainline track No. 5 and two others pursuant to a trackage agreement with Connecting; and that the defendant Metropolitan Transit Authority (MTA) and its subsidiary Long Island Railroad Co. (LIRR) operate diesel engines in the area, which are controlled from a tower located several hundred yards from the scene of the accident.

There was also proof that the fence through which the boys entered the railroad yard is part of Glen Ridge Park which is owned and maintained by the City of New York as a recreational area and playground; that there are several holes in the fence and that on both sides there are well-worn paths leading to these openings which were made and utilized by children in the area. Furthermore it was stipulated that in this particular yard four teenagers were electrocuted or seriously injured by overhead high-tension wires on four separate occasions-- August, 1964, July, 1965, April, 1968 and May, 1968--prior to Scurti's death in June of 1968. It is conceded that Scurti did not have permission to enter the yard or to climb upon the train.

At the end of the plaintiff's case the court dismissed the complaint on the ground that Scurti was a trespasser on the railroad's property at the time of his death. On this appeal the defendants claim that this determination, affirmed by a divided court at the Appellate Division, was correct. In addition the MTA and the LIRR urge that there was no basis under any standard for holding them liable for the injury. The City of New York, it should be noted, argues that the railroads breached no duty owed to the trespasser, apparently on the theory that the city cannot be held liable for contributing to the injury if the other defendants are immune.

The order of the Appellate Division should be modified. With the elimination of the special immunities conferred on landowners, their liability to persons injured on their property depends on the reasonableness of their conduct under all the facts and circumstances. However even under that standard there is no basis for holding the MTA or the LIRR liable in this case. They did not own or control the yard, the tracks, the train or the high-tension wires in the area. They were simply bystanders who ran diesel--not electric powered--trains in the yard, and their activities had nothing to do with Scurti's death. The order of the Appellate Division should be affirmed insofar as it dismissed the complaint against the LIRR and the MTA.

As to the other defendants however, there should be a new trial. They owned or operated the instrumentalities which caused or contributed to the boy's death and the jury could find that under the circumstances, they failed to use reasonable care to avoid a foreseeable injury. And since there must be a new trial it is appropriate to indicate at least in general terms, how this trial should differ from a trial held under prior law, and what factors conclusive under prior law, may continue to have some relevance in determining the liability of a landowner for injury to one who concededly entered the property without permission.

The starting point at common law was the fact that the injury, no matter how foreseeable, had occurred on the defendant's property. At a time when landowners were a dominant class and ownership of land was considered akin to a sacred right, the fact that the plaintiff was a trespasser was of the utmost importance. This attitude was reflected in the law which, in its practical application, valued the rights and privileges of ownership 'over the lives and limbs of trespassers' (2 Harper and James, Torts, p. 1438; Hughes, Duties to Trespassers, 68 Yale L.J. 633, 656, 657; 18 Harv.L.Rev. 150; cf. Prosser, Torts (2d ed.), p. 434). Thus the landowner was held to owe no duty to a trespasser other than the obligation to refrain from willfully or wantonly injuring him (Hughes, Op. cit., p. 635; Johnson v. New York Cent. & Hudson Riv. R.R. Co., 173 N.Y. 79, 82, 65 N.E. 946, 947). This simply proscribed certain criminal or quasi-criminal acts such as shooting (Magar v. Hammond, 183 N.Y. 387, 76 N.E. 474) or setting traps (Bird v. Holbrook, 4 Bing. 628; Walsh v. Fitchburg R.R. Co., 145 N.Y. 301, 39 N.E. 1068; Hughes, Op. cit., p. 649), and did little more than serve as a reminder that it was not open season on trespassers.

Later, as the general theory of tort liability developed in response to a heightened awareness of the value of human life, new reasons were found to justify the landowner's immunity. It was said, for instance, that there was little likelihood that one would enter another's property without permission and thus the trespasser was not foreseeable (2 Harper and James, Op. cit., p. 1436; Prosser, Op. cit., p. 433). It was also argued that a landowner should be entitled to develop his property in the most profitable way, and any requirement that he alter the condition of his property or curtail his activities in order to protect intruders would create unreasonable burdens inhibiting enjoyment or profitable use of the land (2 Harper and James, Op. cit., p. 1437; Smith, Liability of Landowners to Children Entering Without Permission, 11 Harv.L.Rev. 349, 362; Prosser, Op. cit., p. 434; Walsh v. Fitchburg R.R. Co., 145 N.Y. 301, 39 N.E. 1068, Supra; Mendelowitz v. Neisner, 258 N.Y. 181, 179 N.E. 378). And finally it was urged that one who enters without permission knowing that the property was not prepared for him assumes the risk or is guilty of contributory negligence as a matter of law (2 Harper and James, Op. cit., pp. 1438--1439; Prosser, Op. cit., p. 434; Hughes, Op. cit., p. 687).

All of these hypotheses obviously have some probative value. But the facts in a particular case might show that trespassers were foreseeable or even foreseen; that the injury could have been prevented by a minimal effort on the part of the landowner; and that there was no basis for finding that the trespasser proceeded in the face of a known danger or was guilty of contributory negligence. To say that the hypothetical factors are always present and thus entitled to conclusive effect in all cases is the purest legal fiction, particularly unrealistic in the case of the infant trespasser.

This was a harsh rule with harsh results and over the years the courts created a number of exceptions. Thus for instance, distinctions were drawn between plaintiffs who were trespassers, licensees and invitees (see e.g., Vaughan v. Transit Development Co., 222 N.Y 79, 118 N.E. 219), with trespassers being further subdivided into discovered and undiscovered trespassers (Ansteth v. Buffalo Ry. Co., 145 N.Y. 210, 39 N.E. 708; cf. Lo Casto v. Long Is. R.R. Co., 6 N.Y.2d 470, 190 N.Y.S.2d 366, 160 N.E.2d 846). Defendants were divided into owners and nonowners (Constantino v. Watson Contr. Co., 219 N.Y. 443, 114 N.E. 802; Ferrari v. New York Cent. R.R. Co., 250 N.Y. 527, 166 N.E. 311; Cavanaugh v. Peoples Gas & Elec. Co., 260 N.Y. 547, 184 N.E. 86; Ehret v. Village of Scarsdale, 269 N.Y. 198, 199 N.E. 56); the subspecies being non-owners using the premises for their own convenience (Wittleder v. Citizens' Elec. Illuminating Co., 50 App.Div. 478, 64 N.Y.S. 114) and nonowners acting on the owner's behalf (Ireland v. Complete Mach. & Equip. Co., 174 Misc. 91, 21 N.Y.S.2d 430; Gold v. Rosenblatt, 1 A.D.2d 894, 149 N.Y.S.2d 415).

There was a basic distinction drawn between injuries caused by active negligence, i.e., dangerous activities (Barry v. New York Cent. & Hudson Riv. R.R. Co., 92 N.Y. 289; Byrne v. New York Cent. & Hudson Riv. R.R. Co., 104 N.Y. 362, 10 N.E. 539) and passive negligence, i.e., dangerous conditions (Nicholson v. Erie Ry. Co., 41...