The issue is whether an owner is liable to an infant for injuries sustained as a result of another child raising and dropping a public sidewalk grating-type cellar door on the infant’s hand. The door was not locked although it had a locking mechanism, because the mechanism was in disrepair. The trial court dismissed the complaint as a matter of law at the close of plaintiffs’ case.
The judgment should be affirmed.
Concededly no ordinance or statute requires that an owner who uses a cellar or vault entrance in the public way is required to keep the entrance locked or secured. If he does so, it is to protect himself against unlawful entry and larceny. The cellar doors, however, must be maintained in a manner to prevent undue risk of harm to those who use the streets lawfully (e.g., Schweizer v. Willard, 210 App. Div. 480; 4 Warren’s N. Y. Negligence, §§ 4.20, 4.57).
Cases cited in the dissenting opinion involve the placing in the public way of machines, devices, or materials which in their nature or by their arrangement are dangerous and known to be attractive to children. The point is that there must be both a dangerous instrumentality and attractiveness to children. Either one without the other is not enough. The cases cited in the dissenting opinion therefore, follow a well-settled rule applicable to children using the public ways and who are not trespassers on another’s land, much akin to the attractive nuisance doctrine (3 Warren’s N. Y. Negligence, Children, § 2.07, esp. [3] and [4]; id. § 2.08). Cellar and vault doors are not dangerous instrumentalities. The rules and the distinctions are sharply delineated, with the supporting authorities, in the opinion of Mr. Justice MoNally in Bolsenbroek v. Tully & Di Napoli (12
The distinctions are well-settled and recognized generally (Anno: Sidewalk Covering—Liability, 31 ALR 2d 1334; Anno: Cover in Sidewalk—Liability for Condition, 62 A. L. R. 1067). The sparsity of cases in this State is explained perhaps by the hopelessness of the claim under prevailing rules; but there is at least one case in point. In Bauman v. Be-Jel Realty Corp. (171 Misc. 845 [Kings County Sup. Ct.]) the infant plaintiff dropped a piece of chalk into a cellar way through a hinged grating. He and another child lifted the grating and as the other released the grating it fell on the infant’s hand. It was held that there was no cause of action because the owner’s duty was limited to providing a safe cover in the sense that it must be firm or fixed in its bed so as not to offer undue hazard to pedestrian users of the sidewalk. The case was affirmed (259 App. Div. 733). See, also, Kowalchick v. Reshin (146 Misc. 770 [App. Term, 1st Dept.]) in which it was held that there was no liability under facts involving an unguarded cellar entrance (a violation of the ordinance) where the infant plaintiff was injured jumping over the opening, knowing that it was there. It was stated that the purpose of the applicable ordinance was to protect users of the sidewalk not knowing of the danger from inadvertently falling into the opening. This case by its logic as well as by its precedental standing establishes the immateriality of any administrative code provision requiring that cellar doors be kept closed, let alone locked.
Many cellar and vault doors and especially hinged gratings are not locked and may be observed in that condition in the streets of this city. Of course, there is no requirement that an owner must keep a sidewalk cellar or vault door locked. The Supreme Court of Missouri has so held as to coal hole covers, a device, for the purposes of this case, of the very same nature (Bond v. Weiner, 346 Mo. 258). To similar effect, see Mondelli v. Caputo (174 N. Y. S. 625 [App. Term, 1st Dept.]). In Illinois a case, distinguishable and yet in part applicable, arose. It involved a cellar door unlocked but possessed of a hasp for padlocking. It was held that there was no obligation to lock the door and that in any event locking the door would not have prevented the sagging which created the dangerous condition (Kalil v. Wolldenroot Operating Co., 341 Ill. App. 58). Hence,
The case of Jaked v. Board of Educ. of City of Albany (198 App. Div. 113, affd. 234 N. Y. 591) is not in point. The issue was a school board’s liability for unfastened iron gates on which it knew its school children played by swinging on them, as a result of which the infant plaintiff sustained injuries. The theory of liability was expressly stated to be that the defendant " had the care, custody and control of the school building, and it was its duty to keep the building and the approaches thereto in a reasonably safe condition, so as not to endanger the life or limb of children attending the school” (p. 115; emphasis supplied). This was not even the issue in the case but rather whether the school board had governmental immunity in negligently permitting its school children to swing on the gates. Indeed, this court refused to apply the rule of the Jaked case to a child who was injured on mesh wire surrounding a school because he was truant at the time (Basmajian v. Board of Educ. of City of N. Y., 211 App. Div. 347, 351).
On no view of the issue is there any basis for a recovery. It is simply that one is not obligated to protect users, including children, who may use harmless things to cause themselves harm. Indeed, if that were not the rule, the neighbor instead of the parent would have the obligation of protecting the children from themselves and the harmless things that abound in their environment so long as the neighbor is the owner of the harmless things and learns of the children’s mischievous or playful proclivities. Moreover, if the rule were otherwise it would be quite difficult to draw the line, if any, as to the harmless things which might ground liability, or in the alternative, there would be an extraordinary and thus far unrecognized restriction on the freedom of owners in the placement and use of their harmless property.
Accordingly, the judgment should be affirmed with costs and disbursements to defendant-respondent.