Opinion
16291/09.
Decided January 31, 2011.
Plaintiffs were represented by Jonathan D'Agostino Assoc., PC, Staten Island, NY.
Defendant National Grid was represented by Cullen Dykman, LLP, St., Brooklyn, NY.
Defendant Robert A. Denault III was represented by Richard T. Lau Assoc., Jericho, NY.
Is the act of repeatedly throwing on self from a speeding scooter onto a lawn, in which was located a metal gas cap, an intervening act, which eviscerates any negligence on the part of the landowner and utility company for the placement or maintenance of the gas cap which the plaintiff fell upon? This court holds that the plaintiff's actions constituted an intervening act and therefore any negligence of defendants was not the proximate cause of plaintiff's injuries.
The defendants move to dismiss the complaint on the basis that no duty was owed to the plaintiff, alternately if such duty existed then they were not negligent and that the injuries suffered by the plaintiff were not proximately caused by an act or omission of either defendant.
On July 2, 2008, the infant plaintiff, Yasar Kiani, (Yasar) was visiting his friend Edward Fritz. The children were riding scooters on the sidewalk in front of the Fritz house which apparently was on a hill. The scooters were manual with a foot brake located on the back, over the wheel. Yasar testified that they would climb to the top of the hill and then ride down. During his descent, when he felt that he was going too fast and thought that continuing to ride would cause him injury, he would intentionally jump off the scooter onto the defendant's lawn. Yasar repeated this activity twice, and on the third time, he fell onto a gas cap which was painted yellow, located on defendant's lawn and owned by National Grid Utility Svc. (Nat Grid). Yasar sustained a laceration to his knee which required stitches.
The plaintiff commenced this action against Robert Denault and Nat Grid alleging that inter alia they were negligent in the installation of the gas cap, and in the ownership, operation, maintenance and control of the premises. Plaintiff further asserts that Denault was negligent in failure to warn, correct or bring attention to the gas cap located on his lawn. It should be noted that the gas cap was located two feet and seven inches from the border of the sidewalk, inside of the lawn.
The law recognizes that "a landowner or lessee has a duty to exercise reasonable care in order to maintain its property in a safe condition." Barth v. City of New York, 307 AD2d 943 [2nd Dept 2003] (internal citations omitted). However an exception to the landowner's duty arises when an occurrence is "so exceptional in nature that it does not suggest itself to a reasonably prudent person as one which should be guarded against'." Elardo v. Town of Oyster Bay, 176 AD2d 912 [2nd Dept 1991] quoting Fellis v. Old Oaks Country Club, 163 AD2d 509, quoting Silver v. Sheraton-Smithtown Inn, 121 AD2d 711.
There is no allegation that the defendants were aware of the children engaging in this behavior on the date of the accident, of any prior similar incidents, or that the gas cap can be considered some type of attractive nuisance, factors which would generally enjoin the defendants to take some specific safety measures. Therefore, this court finds the actions of Yasar to be so exceptional in nature as to exempt any duty owed to him by the defendants.
Defendants cannot be found liable because Yasar's actions also constituted the proximate cause of his injuries. It is well established that "a defendant is liable for all natural and foreseeable consequences of its acts, an intervening act will constitute a superseding cause and will serve to relieve a defendant of liability when the act is of such an extraordinary nature or so attenuated from the defendant's conduct that responsibility for the injury should not reasonably be attributed to the defendant. Barth, 307 AD2d 943 [2nd Dept 2003].
The exception of an intervening act has been applied in cases where a child plaintiff was injured by the acts of another child. see e.g. Elardo, 176 AD2d 912(where a playmate threw a piece of broken plexiglass which landed in the plaintiff's eye) and Rizzi v. Scarsdale Leasing Corp., 223 AD2d 696 [2nd Dep't 1996] (children accessed a Golf Club through a hole in the fence whereupon one child hit plaintiff in the eye with a golf club on the follow through of his swing). Further, the exception has applied when an infant plaintiff himself has created the circumstances. McIntyre by McIntyre v. Beaver Dam Winter Sports Club, 163 AD2d 277 [2nd Dep't 1990] (where infant plaintiff had removed the cable from a gate and strung it upon a tree to be used as a brake while sledding on the defendant's property and the bolt attached to the end of the cable struck him in the eye causing extensive brain damage).
In the instant matter, assuming arguendo that the placement or maintenance of the gas cap was negligent, Yasar's actions of repeatedly throwing himself from a speeding scooter onto the defendant's lawn was not a natural and foreseeable consequence of any action taken by the defendants. Therefore, Yasar's actions constituted "a superseding cause which so attenuated their alleged negligence from the ultimate injury that the imposition of liability would be unreasonable." Barth, 307 AD2d 943 [2nd Dept 2003].
Accordingly, defendants' motions granted and the complaint is dismissed.
This constitutes the decision and order of the court.