Caldwell v. Village of Island Park

Lewis, J.

(dissenting). My dissent is prompted by the belief that the decision about to be made extends, beyond the present bounds of decisional law in this jurisdiction, the legal duty of municipalities in the care of public parks.

Upon the facts of record — fairly stated in the opinion by Judge Conway — I do not think it can be said that the defendant village failed to exercise the standard of care it owed to the infant plaintiff in the maintenance of Beach Park. That standard of care required of the defendant that it use reasonable means to protect the infant plaintiff from all dangers known by it or reasonably to be foreseen. That requirement included a duty to maintain the premises comprising Beach Park and the equipmént there installed, in safe repair so as to prevent injury resulting from a defective condition existing on the property. (Curcio v. City of New York, 275 N. Y. 20, 23-24; Peterson v. City of New York, 267 N. Y. 204, 205-206.) There *277is also impressed upon the village the legal duty to protect or warn against the presence on the beach of facilities which by their nature are likely to be a danger or risk to human life or safety. (Clayton v. City of Niagara Falls, 252 N. Y. 595; Fedearowicz v. City of Amsterdam, 293 N. Y. 814; Riggi v. Village of Le Roy, 301 N. Y. 735.) Thus the maintenance by a municipality of a public beach with facilities thereupon which are unsafe either because of their nature or their defective condition, without adequate protection or warning, constitutes actionable negligence.

However, the case at hand does not fall within the rule last stated above. Here, the plaintiffs did not attempt to plead, nor was there proof that Beach Park or any equipment there maintained by the village was unsafe or defective. The injuries suffered by the infant plaintiff were in no wise related to the nature or condition of the beach or of facilities there existing. The infant plaintiff was injured by a firework brought onto the beach by a third person and discharged there in violation of law. (Penal Law, § 1894-a, subd. 2.) The defendant’s only connection with the accident was as owner of the premises upon which the accident occurred.

I am unable to concur with the view of a majority of the court that a municipality, as owner and maintainer of park land, may be held liable for personal injuries to a user of the park which did not result from a defect in, or danger from equipment or facilities, but occurred as a result of an illegal, careless act of a third person unrelated to the status of the park property, and in the absence of proof that the injury suffered was a risk reasonably to be foreseen. The defendant village is not a guarantor of the safety of its Beach Park. Its duty is limited to reasonable care against foreseeable danger. The plaintiffs have failed by their evidence to prove notice to the defendant village sufficient to create liability for the injury which befell the infant plaintiff resulting from the act of one coming onto the beach in unlawful possession of fireworks.

Accordingly, I dissent and vote to affirm the judgment entered upon the order of the Appellate Division.

*278Loughban, Oh. J., Desmond and Froessel, JJ., concur with Conway, J.; Lewis, J., dissents in opinion in which Dye and Fuld, JJ., concur.

Judgment reversed, etc.