CHARLES, JAMES v. VILLAGE OF MOHAWK ( 2015 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    474
    CA 14-02046
    PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.
    JON J. CHARLES, AN INFANT, BY HIS PARENTS
    JAMES CHARLES AND ROBERTA CHARLES,
    PLAINTIFF-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    VILLAGE OF MOHAWK, A MUNICIPAL CORPORATION
    EXISTING PURSUANT TO LAWS OF STATE OF NEW YORK,
    HERKIMER COUNTY, DEFENDANT-APPELLANT.
    MURPHY, BURNS, BARBER & MURPHY, LLP, ALBANY, CONGDON, FLAHERTY,
    O’CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER, UNIONDALE (CHRISTINE
    GASSER OF COUNSEL), FOR DEFENDANT-APPELLANT.
    GEORGE FARBER ANEY, HERKIMER (JESSE B. BALDWIN OF COUNSEL), FOR
    PLAINTIFF-RESPONDENT.
    Appeal from an order of the Supreme Court, Herkimer County (Erin
    P. Gall, J.), entered May 21, 2014. The order, among other things,
    denied the motion of defendant for summary judgment dismissing the
    complaint.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs.
    Memorandum: Plaintiff commenced this action seeking damages for
    injuries he sustained in a cemetery owned and maintained by defendant.
    While playing in the cemetery, which was open to the public,
    plaintiff, then age 7, climbed on to a cantilever gate at one of the
    cemetery’s entrances and began “riding” the rolling gate as it was
    being pushed by his cousin and her friend. Plaintiff failed to remove
    his hands from the top rail of the gate as he approached the gate’s
    rollers, and his fingers were injured as they passed through the
    rollers. The complaint alleged, inter alia, that defendant was
    negligent in failing to secure the gate so as prevent it from being
    “ridden” by children. Supreme Court denied defendant’s motion for
    summary judgment dismissing the complaint, and we affirm.
    “It is beyond dispute that landowners . . . have a duty to
    maintain their properties in [a] reasonably safe condition” (Di Ponzio
    v Riordan, 89 NY2d 578, 582). “Consistent with that duty, the degree
    of care to be exercised must take into account the known ‘propensity’
    of children ‘to roam and climb and play’ ” (Leone v City of Utica, 66
    AD2d 463, 466, affd 49 NY2d 811, quoting Collentine v City of New
    -2-                           474
    CA 14-
    02046 York, 279
     NY 119, 125). Indeed, “New York State courts have
    recognized ‘the special propensities of children and the prevailing
    social policy of protecting them from harm’ . . . and have not
    deprived them of a right to compensation for injuries caused by the
    negligence of third parties . . . solely on account of their misuse of
    an instrument found on the defendant’s premises” (Cruz v New York City
    Tr. Auth., 136 AD2d 196, 201). “What accidents are reasonably
    foreseeable, and what preventive measures should reasonably be taken,
    are ordinarily questions of fact” (Diven v Village of Hastings-On-
    Hudson, 156 AD2d 538, 539).
    Here, although we agree with defendant “that there is nothing
    inherently dangerous about a gate that has no lock” (Ortiz v New York
    City Hous. Auth., 85 AD3d 573, 574), defendant’s own submissions raise
    triable issues of fact whether it was foreseeable that children such
    as plaintiff would misuse the gate in the manner giving rise to the
    accident. Defendant’s former superintendent of cemeteries testified
    at his deposition that, although it “was not a typical occurrence,”
    children sometimes played in the cemetery and, when that occurred, he
    would ask them to leave. Defendant also submitted the deposition
    testimony of plaintiff’s cousins, who testified that they had played
    in the cemetery on prior occasions. “[A]t least once it is known that
    children commonly play around . . . an artificial structure [such as
    the gate], their ‘well-known propensities . . . to climb about and
    play’ . . . create a duty of care on the part of a landowner to
    prevent foreseeable risks of harm that might arise out of those
    activities” (Holtslander v Whalen & Sons, 126 AD2d 917, 919 [Levine,
    J., concurring in part and dissenting in part], mod on concurring in
    part and dissenting in part mem below, 70 NY2d 962).
    Given that, “as a matter of law, [‘riding’ a gate] is not such an
    ‘extraordinary’ form of play as to break the causal connection between
    the dangerous condition . . . and plaintiff’s injuries,” we conclude
    that there is a triable issue of fact whether “[i]t was a natural and
    foreseeable consequence of defendant’s failure to effectively secure
    the [gate] against access that young children would play [on it],”
    thereby resulting in injury (Roberts v New York City Hous. Auth., 257
    AD2d 550, 550, lv denied 93 NY2d 811).
    Entered:   May 8, 2015                          Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 14-02046

Filed Date: 5/8/2015

Precedential Status: Precedential

Modified Date: 10/7/2016