Roffenbender v. City of New York

24 A.D.2d 581, 262 N.Y.S.2d 422, 1965 N.Y. App. Div. LEXIS 3718

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1965
• Status: Published

Opinion

— In an action by the infant plaintiff to recover damages for personal injury, and by his father to recover damages for loss of services, as a result of the alleged negligent maintenance of a picket fence in front of a public library owned by the codefendant, the City of New York, the plaintiffs appeal from a judgment of the 'Supreme Court, Kings County, entered April 3, 1963 after a jury trial, dismissing the complaint at the close of their case. Judgment affirmed, without costs. No opinion. Ughetta, Acting P. J., Hill and Rabin, JJ., concur; Christ and Benjamin, JJ., dissent and vote to reverse the judgment and to grant a new trial, with the following memorandum: On September 7, 1955 the then six-year-old infant plaintiff walked along the 22-inch-high concrete base bordering the sidewalk in front of the building maintained by the defendants. Mounted on the concrete base was a 34-inch-high iron picket fence. The infant plaintiff fell from the base and his chin caught on the top of one of the pickets. The complaint was dismissed at the close of the plaintiffs’ case. In our opinion, it was a question of fact for the jury to determine whether this fence, which was adjacent to the street, constituted a substantial foreseeable danger to children.' The Court of Appeals has so held in a number of cases involving a similar structure where the accident happened under similar circumstances (Shaw v. City of New York, 279 N. Y. 666; Hayton v. McLaughlin, 289 N.Y. 66).