Summary
In Streickler v. City of New York (15 A.D.2d 927, 928), we properly stated: "A playground can be kept closed until the danger thereon is removed or otherwise disappears."
Summary of this case from Saracino v. City of New YorkOpinion
March 5, 1962
In an action by an infant plaintiff to recover damages for personal injuries, and by his father to recover damages for expenses and loss of services, plaintiffs appeal: (1) from an order of the Supreme Court, Kings County, dated and entered February 7, 1961, after a jury trial, which granted the motion of the defendant Board of Education to set aside the verdict in plaintiffs' favor and to dismiss the complaint; and (2) from a judgment of said court, entered February 15, 1961, upon said order, dismissing the complaint on the merits as against said defendant. As against defendant City of New York, the action was discontinued at the opening of the trial. Order and judgment reversed, on the law and the facts, with costs to plaintiffs against defendant Board of Education; verdict reinstated; and judgment directed to be entered accordingly, with costs to plaintiffs against said defendant. The infant plaintiff sustained his injuries in a public playground which was maintained by the defendant board. The accident occurred on a Sunday morning, March 25, 1956, when he was 15 and one-half years of age. He entered the playground through a gate which was kept open in order to allow the public to enter and use the facilities. He was there for the purpose of playing softball with other boys, some of whom were already playing. The ball with which the other boys were playing rolled outside, and came to rest near him and within a few feet of, the marked-out diamond of the playing field. As he walked toward the ball in an attempt to retrieve it, he slipped on a patch of ice. There were several such patches of ice on the playing field. There had been a 13.5-inch snowfall six days before the accident, and another one-inch snowfall the day before the accident. In our opinion, based upon these facts, the rule stated in Caldwell v. Village of Is. Park ( 304 N.Y. 268, 274) is applicable, namely: that "the municipality which extends to its citizens an invitation to enter and use recreational areas owes to those accepting that invitation a duty of reasonable and ordinary care against foreseeable dangers." The danger of ice on the ground may be just as great as that of a defect in the pavement. The situation here may not be equated with the situation of snow and ice on public streets, from which the public may not be excluded merely because of a snowfall; or with the situation of snow and ice on private property, from which tenants may not be excluded and from which it may not be feasible or practicable to exclude visitors. A playground can be kept closed until the danger thereon is removed or otherwise disappears. Moreover, while persons walking on public streets or private property may be expected to be watchful for sporadic patches of snow and ice, it should not be expected that young boys playing ball in a playground or retrieveing balls there will be watchful for such dangerous areas.
The learned trial court set aside the verdict and dismissed the complaint on the ground, among others, that there was no evidence of actual or constructive notice of the alleged dangerous conditions. In my opinion, there was such evidence. However, the charge of the court did not instruct the jury either as to the necessity of a finding of actual or constructive notice in order to impose liability on the defendant Board of Education, or as to the nature and content of such notice. Under these circumstances, I am of the opinion that the interests of justice require a new trial, even though no exception was taken to the charge ( Faichney v. Ketelsen, 250 App. Div. 868; Goodheart v. American Airlines, 252 App. Div. 660, 663; Seitz v. Board of Educ., Union Free School Dist. No. 1, 284 App. Div. 1022).
If this accident took place on private property, there would be no liability ( Schwabl v. St. Augustine's Church, 288 N.Y. 554). If this accident took place on the public sidewalk, there would be no liability ( Spicehandler v. City of New York, 303 N.Y. 946). The majority is of the opinion that there is liability here merely because the defendant Board of Education did not exclude the public from this schoolyard on the Sunday morning when the accident occurred. I cannot agree with such an extension of the board's liability. To fasten liability on the board here would be to impose upon it toward its licensees a duty greater than the duty imposed upon all other property owners toward their licensees.