Koppel v. Hebrew Academy of Five Towns

191 A.D.2d 415, 594 N.Y.S.2d 310, 1993 N.Y. App. Div. LEXIS 1802

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 1993
• Status: Published

Opinions

—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Molloy, J.), dated October 5, 1990, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

As the infant plaintiff was climbing upon a 10-foot cyclone fence surrounding the defendants’ property, she cut her hands on what plaintiffs allege to be the very sharp ends of the top of the fence.

The plaintiffs commenced this action, asserting, among other things, that the defendants knew or should have known that children climbed on the fence frequently, and that they caused or permitted the fence to be in a negligent and/or dangerous condition.

The defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion, finding that the defendants failed to meet their burden of entitlement to summary judgment. We disagree and reverse.

A landowner has a duty to act reasonably, maintaining its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see, Basso v Miller, 40 NY2d 233, 241).

The infant plaintiff attempted to climb over the top of a 10-foot fence which, by the plaintiffs’ own admissions, had visibly "razor sharp” and "dagger like ends”. There is no claim, or factual support for any claim, that the sharp edges were hidden or concealed or not fully obvious. Under the circumstances of this case, the defendants breached no duty to the infant plaintiff, and we decline to impose upon the defendants a duty to protect against actions of the kind involved here.

We also note that the purpose of a 10-foot high fence with obviously sharp edges is to keep people out of the fenced-in premises. To hold that a landowner must maintain a fence so as to make it safe to climb over would encourage people to do so, and would defeat the very purpose of the fence. Moreover, an easily maneuverable fence might even invite other types of lawsuits for failure to adequately deter trespassers (see, e.g., Annotation, Duty of Landowner to Erect Fence, or Other Device to Deter Trespassing Children from Entering Third Person’s Property on which Dangerous Condition Exists, 39 ALR2d 1452, 1455). Accordingly, the defendants are entitled to summary judgment dismissing the complaint. Thompson, J. P., Rosenblatt, and Miller, JJ., concur.