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Diven v. Village of Hastings-On-Hudson

Appellate Division of the Supreme Court of New York, Second Department
Dec 18, 1989
156 A.D.2d 538 (N.Y. App. Div. 1989)

Summary

noting that it is considered probable "that children will enter upon premises and ‘climb about and play’ often in ways that imperil their safety"

Summary of this case from Macias v. Summit Mgmt., Inc.

Opinion

December 18, 1989

Appeal from the Supreme Court, Westchester County (Nastasi, J.).


Ordered that the order is modified, on the law, upon searching the record, by adding thereto a provision dismissing all cross claims asserted against the respondents; as so modified, the order is affirmed, without costs or disbursements.

The infant plaintiff was seriously injured when he fell from a cliff located somewhere (the precise location is not clear) in the vicinity of the boundary between the property of the respondents and the property of the codefendant, the Village of Hastings-On-Hudson (hereinafter the Village). The plaintiffs seek to impose liability on the respondents on the theory that they were negligent in failing to erect a fence so as to prevent children from coming from the Village's property (which was operated as a park) onto their property, and that such negligence caused the injuries suffered by the infant plaintiff. The Supreme Court granted summary judgment in favor of the respondents, and dismissed the complaint as to them.

In this case, the infant plaintiff had decided, along with a group of his friends, to climb to the top of the cliff. His friends arrived at the top of the cliff, as had the infant plaintiff himself on several prior occasions, by way of a dirt path. The infant plaintiff, taking a different route, scaled the face of the cliff itself. After spending several minutes on the top of the cliff, the infant plaintiff attempted to descend, again by climbing down the face of the cliff. According to the infant plaintiff, "I was climbing down the cliff and I just slipped".

In general, landowners have a duty to prevent the occurrence of foreseeable injuries (see generally, Preston v State of New York, 59 N.Y.2d 997; Basso v Miller, 40 N.Y.2d 233; Scurti v City of New York, 40 N.Y.2d 433). It is considered foreseeable that children will enter upon premises and "climb about and play" (Collentine v City of New York, 279 N.Y. 119, 125), often in ways that imperil their safety (see, e.g., Holtslander v Whalen Sons, 126 A.D.2d 917, 919-920, mod on opn of Levine, J., at App. Div., 70 N.Y.2d 962; see also, Cruz v New York City Tr. Auth., 136 A.D.2d 196). What accidents are reasonably foreseeable, and what preventive measures should reasonably be taken, are ordinarily questions of fact (see, Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 315; Bahan v Green Bus Lines, 96 A.D.2d 876, affd 61 N.Y.2d 922). Liability may be imposed upon a landowner who fails to take reasonable precautions in order to prevent those accidents which might foreseeably occur as the result of dangerous terrain (see, e.g., Morell v Peekskill Ranch, 104 A.D.2d 492, 493-495 [dissenting opn], revd 64 N.Y.2d 859, on dissent of Rubin, J.; Malvaso v State of New York, 15 Misc.2d 585, affd 10 A.D.2d 663; see also, Burkart v State of New York, 28 A.D.2d 1167; Harran v State of New York, 9 A.D.2d 31).

However, a landowner has no duty to erect barriers or fences in order to enclose natural geographical phenomena which do not in some way represent latent dangers or conditions, so as to prevent persons coming upon the land from injuring themselves by entering onto the condition in question (see, Barnaby v Rice, 75 A.D.2d 179, affd 53 N.Y.2d 720, on opn at App. Div.; see also, Annotation, Duty of landowner to erect fence, or other device to deter trespassing children from entering third person's property on which dangerous condition exists, 39 ALR2d 1452; 4B Warren, New York Negligence, Fences, § 1.01; cf., Scurti v City of New York, 40 N.Y.2d 433, supra). In the instant case, the infant plaintiff's own deposition testimony establishes conclusively that any danger represented by the cliff in question was open and obvious, rather than latent. The cliff at issue is no different in legal consequences from the river in the Barnaby v Rice case (supra), and no tort liability flows from the landowner's failure to enclose the cliff in question.

Accordingly, we affirm the grant of summary judgment dismissing the complaint as against the respondents. The order under review should, however, be modified (see, CPLR 3212 [b]) so as to dismiss not only the complaint as asserted against the respondents, but the cross claims of the Village as well. Because the respondents cannot be held liable to the plaintiffs on any theory, they cannot be liable to the Village on the basis of contribution (see, CPLR 1401; Nassau Roofing Sheet Metal Co. v Facilities Dev. Corp., 71 N.Y.2d 599, 603; Schauer v Joyce, 54 N.Y.2d 1, 5). Bracken, J.P., Kunzeman, Kooper and Balletta, JJ., concur.


Summaries of

Diven v. Village of Hastings-On-Hudson

Appellate Division of the Supreme Court of New York, Second Department
Dec 18, 1989
156 A.D.2d 538 (N.Y. App. Div. 1989)

noting that it is considered probable "that children will enter upon premises and ‘climb about and play’ often in ways that imperil their safety"

Summary of this case from Macias v. Summit Mgmt., Inc.

In Diven v Village of Hastings-On-Hudson (156 A.D.2d 538), the Second Department affirmed a judgment dismissing a complaint where a youth had fallen from a cliff upon which he was climbing.

Summary of this case from Tarricone v. State
Case details for

Diven v. Village of Hastings-On-Hudson

Case Details

Full title:DANIEL S. DIVEN, an Infant, by His Father, HARRY S. DIVEN, et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 18, 1989

Citations

156 A.D.2d 538 (N.Y. App. Div. 1989)
548 N.Y.S.2d 807

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