Watson v. Niagara Mohawk Power Corp.

66 A.D.2d 996, 411 N.Y.S.2d 769, 1978 N.Y. App. Div. LEXIS 14359

Opinions

Order and judgment reversed, on the law and facts, with costs, and a new trial granted. Memorandum: Plaintiff seeks damages for the wrongful death of his five-year-old son which occurred when the boy fell into the Black River while playing on a concrete retaining wall maintained by defendant as part of its Kamargo Substation. At the conclusion of the proof the Trial Justice directed a verdict in favor of defendant, relying on the status rules of liability as they existed before the Court of Appeals decision in Basso v Miller (40 NY2d 233). That subsequent decision applies to all pending litigation and governs the disposition of this appeal (Garlock v Penn Cent. Transp. Co., 53 AD2d 1006). Taking the evidence in the record in the light most favorable to plaintiff, as we must, we find that there were factual issues on whether defendant was chargeable with constructive knowledge that children played and swam from the walls and improvements connected with its substation and whether it exercised reasonable care to prevent injury to such persons under all the circumstances (see Barker v Parnossa, Inc., 39 NY2d 926; Naughton v Sheehan, 56 AD2d 839). All concur, except Moule, J. P., who dissents and votes to affirm the order and judgment, in the following memorandum.