Leone v. City of Utica

OPINION OF THE COURT

Dillon, J.

We are here concerned with the liability which may befall a municipality for injuries sustained by a child on railroad property located adjacent to a city-owned and regularly used park and playground. While the degree of care to be imposed upon a municipality in a particular case is necessarily dependent upon the attendant circumstances and is thus ordinarily a jury question (Caldwell v Village of Is. Park, 304 NY 268), it is the claim of the defendant City of Utica that the plaintiffs should be foreclosed from recovery as a matter of law. We disagree.

Gilmore Park, an irregularly shaped parcel of land consisting of approximately nine acres, was acquired by the city in 1948. The major portion of its east line fronts on Hazelhurst Avenue and on the west it borders the Erie Lackawanna Railroad property for a distance of 717.73 feet. Its southern boundary adjoins a small strip of privately owned land which in turn borders Zoar Avenue, an unimproved street.

Within the easterly portion of the park and transversing its entire length from north to south is a land depression or ravine which varies from 25 to 30 feet in width and from four to eight feet in depth. Although the park land west of the ravine is heavily wooded and rugged, it contains several footpaths, a "tree fort” and rope swings tied to trees. Many of the footpaths lead to the railroad property along the western line of the park, and it also appears that some lead to the park’s southern boundary. The land south of the park, including the Zoar Avenue extension and the property to its south, is also wooded and rugged in similar contour to that of the westerly park land.

In 1969 the city developed a playground in the southeastern corner of the park. Neither the playground nor the larger park area was enclosed by fencing and thus there were no formidable obstacles or barriers between the playground and the remainder of the park, or between the park and the railroad property. The playground was constructed for the use of children residing in a neighboring housing complex owned by the city’s municipal housing authority and known as Gilmore Village. While there had been children’s outdoor play equipment within the housing complex at one time, it was removed upon development of the park playground, and thereafter the children were discouraged from outdoor play on the project grounds.

During the afternoon of August 24, 1970, eight-year-old. Anthony Leone left his apartment in Gilmore Village and crossed Hazelhurst Avenue to play in Gilmore Park. While city personnel had been assigned to the playground during the summer of 1970, they did not appear after August 15th. Anthony, who played in the park nearly everyday that summer, met his friends in the playground and they walked through the ankle-deep water in the ravine and into the woods where they played and chased each other. Upon hearing a train whistle he and the other children, according to his testimony, ran from the park in a westerly direction to the railroad tracks to wave at the trainmen. He climbed up a five-foot incline to reach the railway and began to run after the northbound, slowly moving train. He was near the end of the train when he slipped and fell beneath it. The other children ran away and he crawled a short distance toward the path which he had used to reach the tracks. Help arrived within a few minutes and Anthony was removed to a hospital where his right leg was amputated.

Although Anthony testified that the accident occurred near the middle of the park’s west boundary line, a police officer and an ambulance attendant each testified that Anthony was found south of the Zoar Avenue extension, approximately 220 to 250 feet southwesterly of the southwest corner of Gilmore Park. Based upon the latter testimony as to Anthony’s location following the accident, the city takes the view that he arrived on the railroad property from privately owned land and not directly from its park land.

Initially, the city urges that it owed no duty to Anthony. It is well settled, however, that the "city owes to those who use its parks a duty of ordinary care against foreseeable danger (see, e.g., Caldwell v Village of Is. Park, 304 NY 268, 274).” (Scurti v City of New York, 40 NY2d 433, 445 [Breitel, Ch. J., concurring in part and dissenting in part]; see Lukasiewicz v City of Buffalo, 55 AD2d 848.) 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” (Collentine v City of New York, 279 NY 119, 125).

The record sufficiently establishes that young children often played in the wooded area of the park west of the creek and it may fairly be inferred that the city was aware of that activity and made no effort to prevent it. Additionally, the city had knowledge of the location of the railroad tracks and that pathways in the park lead to those tracks. Certainly the jury may have found, in view of the foreseeable danger of serious injury presented by the location of the railroad tracks (cf. Baltimore & Ohio R. R. Co. v Goodman, 275 US 66, 69), that the failure of the city to fence its playground or park, or to supervise the use of the park or to take some other reasonable precaution to prevent or discourage children from going onto the railroad property, constituted a lack of ordinary care (cf. Jacques v Village of Lake Placid, 39 AD2d 163, affd 32 NY2d 739). While the city might have introduced proof showing that it would have been unduly burdensome to take measures to avoid the risk of harm presented here (see Scurti v City of New York, supra, p 442), it did not do so.

The city also argues that its conduct was not the proximate cause of Anthony’s injury. This court is bound to assume, however, that the jury adopted that view of the evidence most favorable to the prevailing parties (Calabrese v County of Ontario, 58 AD2d 1008; Colegrove v City of Corning, 54 AD2d 1093). Anthony testified that he was playing in the park when he heard the train whistle and he then ran along one of the footpaths directly to the tracks. While the path Anthony used may have led from the park over private property and then to the tracks, neither the actual place of his exit from the park nor the precise location of the accident may be said to be so remote as to require a determination, as a matter of law, that the injury was not proximately caused by the city’s negligence. The jury properly may have found that the city’s breach of duty was a substantial factor in bringing about this foreseeable occurrence (see Quinlan v Cecchini, 41 NY2d 686, 696; Scurti v City of New York, 40 NY2d 433, supra). Since there were no barriers or apparent line of demarcation between the park land and the contiguous property, it could reasonably have been anticipated that an infant, attracted by a train whistle, might take a path leading from the park and across that property to the tracks. The jury permissibly could have found that a fence along the boundary between the park and the private property would have prevented this accident. Thus viewed, the issue of liability was properly submitted to the jury as a question of fact (see Lukasiewicz v City of Buffalo, 55 AD2d 848, 849, supra).

Other issues raised by the city require comment. It is argued that there should be a reversal because the notice of claim served pursuant to section 50-e of the General Municipal Law failed accurately to describe the place of the accident. The notice states, in pertinent part, that the accident occurred "on the extension of Zoar Street at the Erie Lackawanna Railroad tracks.” The only proof offered by the plaintiffs concerning the location of the accident, however, indicated that it took place approximately 500 feet north of the area identified in the notice of claim.

The purpose of requiring a notice of claim is to assure the recipient "an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available. [Citations omitted.]” (Teresta v City of New York, 304 NY 440, 443.) Here the notice furnished information sufficient to enable the city to conduct a proper and timely investigation of the accident. Indeed, the evidence introduced by the city indicated that the accident did, in fact, occur near the Zoar Avenue extension as stated in the notice of claim.

The disparity between the notice and the plaintiffs’ testimonial version of the accident might well have been earlier discovered had the city exercised its opportunity to conduct a pretrial examination of Anthony. In any event, the statute authorizes the court to correct or disregard a defective notice of claim if "it shall appear that the other party was not prejudiced thereby” (General Municipal Law, § 50-e, subd 6). In the circumstances presented, it may not be said that any error in the notice prejudiced the city (see Rivero v City of New York, 290 NY 204, 208).

Finally, the city claims that the trial court erred in denying its motion to amend its answer by asserting a cross claim against the Erie Lackawanna Railroad Company after the court, over its objection, had granted plaintiffs’ motion for a voluntary discontinuance of their action against the railroad. The motion to discontinue and the motion to amend were made after the parties had completed opening statements. The railroad was involved in bankruptcy proceedings and plaintiffs neither received nor had an agreement to receive any consideration in exchange for the voluntary discontinuance. Thus, the discontinuance constituted neither a release nor a covenant not to sue. In such circumstances, plaintiffs’ claim was not reduced within the meaning of section 15-108 of the General Obligations Law.

While it may have been preferable, in the interest of judicial economy, to have granted the city’s motion to amend its answer to include a cross claim against the railroad, our inquiry now necessarily focuses upon the city’s rights under CPLR article 14 (§ 1401 et seq.). That article, largely born of the decision in Dole v Dow Chem. Co. (30 NY2d 143), represents the codification of rights of defendants and potential defendants inter sese, including the rights of contribution unfettered by prior limitations, the new right of apportionment of damages according to the measure of fault, and the preservation of the remedy of indemnification. Significantly, however, article 14 made no change in the rule that a successful plaintiff could collect his judgment in whole or in part from any one of the joint judgment debtors. In short, other than incidentally, the statute neither enlarged nor diminished the rights of plaintiffs (Klinger v Dudley, 41 NY2d 362).

Our concern here, then relates to the prejudice which may have been worked upon the city by virtue of the trial court’s rulings. Clearly, the city was deprived of an immediate opportunity to have its fault apportioned with that of another defendant. The interposition of a cross claim, however, would not have affected plaintiffs’ rights against the city (see Klinger v Dudley, supra, p 367; Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3019 [Cumulative Annual Pocket Part, 1978-1979], p 25). The trial court’s denial of the motion does not require a new trial since the city may institute a separate action for contribution against the railroad (see CPLR 1403).

In reaching that conclusion, we are not unmindful of the holding in Gannon Personnel Agency v City of New York (57 AD2d 538). There several defendants were found to be liable and, as to them, the allocation of the share of fault of the insolvent defendant, whose potential liability was not submitted to the jury, was vital in fully assessing their respective shares of fault. There is no such pertinency here. Importantly, a new trial of this action would not entitle the city to relitigate the issue of its liability or the extent of plaintiffs’ damages (see Lisio v Ranchose Realty of Corona Corp., 36 NY2d 739, modfg 42 AD2d 996; Gannon Personnel Agency v City of New York, supra). This rule was recognized in Cimino v City of New York (54 AD2d 843, affd 43 NY2d 966) but because of the complexities in that case, not present here, the court was unable to apply the rule. Nor may the city rely upon Carey v AAA Con Transp. (61 AD2d 113) as support for a contrary result since there the reversal of plaintiff’s verdict against the one remaining defendant was based upon trial error which prejudiced that defendant.

Accordingly, the judgment should be affirmed.