Korzenski v. Dunkirk Radiator Corp. ( 1963 )

Appeal from a judgment of the Supreme Court in favor of plaintiff, entered October 31, 1962, in Chautauqua County, upon a verdict rendered at a Trial Term.

Memorandum by the Court. Plaintiff received a substantial verdict following a jury trial. There was proof that a third party with the knowledge and consent of defendant excavated a hole on its land approximately 800 feet long, 160 feet wide and 12 feet deep. Through the years water accumulated in the excavation to form a small pond and unidentified persons placed fish therein. There was evidence that various persons fished about the shore of the pond. The infant plaintiff was standing some 12 feet behind one of these fishermen. The latter in casting his hook and line into the water caused them to arc behind him and away from the water. The hook became imbedded in an eye of the infant, resulting in the eventual loss thereof. The jury was instructed as to the duties and responsibilities of defendant to the infant in the event they found the latter to be a trespasser, licensee or invitee. Inasmuch as there was a general verdict, the finding of the jury — -if one was made- — as to the status of the infant may not be determined. We conclude that upon the proof no trier of the facts could find by any rational process that the infant was an invitee. If found to be a licensee, then defendant owed him “ ‘ only the duty to exercise reasonable care to disclose * * • dangerous defects known to defendant and not likely to be discovered by plaintiff ’ ”. (Krause v. Alper, 4 N Y 2d 518, 521.) The injury sustained was not caused by any affirmative act of negligence on the part of defendant or by the existence of any trap or pitfall on its property (Brzostowski v. Coca-Cola Co., 16 A D 2d 196, 198, 199). The injury was caused by the act of the fisherman and this was an unforeseeable intervening cause which produced a result which could not have been foreseen by defendant thereby relieving the latter from liability (Prosser, Torts [2d ed.], p. 266; Bolsenbroek v. Tully & Di Napoli, 12 A D 2d 376, affd. 10 N Y 2d 960).