Flynn v. Long Island Rail Road

37 A.D.2d 595, 322 N.Y.S.2d 828, 1971 N.Y. App. Div. LEXIS 3848

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1971
• Status: Published

Opinion

In two actions to recover damages for wrongful death (jointly tried, without consolidation), plaintiffs appeal from the single judgment of the Supreme Court, Queens County, entered December 4, 1970, in favor of defendant, upon the trial court’s dismissal of the complaints on the basis of plaintiffs’ counsel's opening to the jury. Judgment reversed, on the law, with costs to appellants jointly, and new trial granted. The dismissal of the complaints was made upon the opening jury statement of plaintiffs’ counsel. In his oral decision the learned trial court stated that the ease at bar, in his view was “ on all fours ” with Kline v. Long Is. R. R. Co. (17 A D 2d 988, affd. 13 N Y 2d 773), wherein the dismissal of a complaint upon the opening of plaintiff’s counsel was sustained on the ground there was nothing in the opening which indicated that plaintiff could or would establish a violation of any duty owing to a trespasser. In our view the present case, wherein the verified complaints alleged “ intentional ”, “ willful ”, “ wanton and reckless ” conduct on the part of defendant and wherein plaintiffs’ attorney in his opening to the jury indicated that certain conduct of defendant constituted "reckless fault”, is distinguishable from Kline (supra). If it be assumed, arguendo, that plaintiffs were trespassers, there was nothing in plaintiffs’ opening which indicated that, as a matter of law, they would be unable to establish a violation of a duty owing to a trespasser, that is, the duty to refrain from willful, wanton or reckless acts. A new trial is mandated. Hopkins, Acting P. J., Martuseello, -Shapiro, Gulotta and Benjamin, JJ., concur.