(dissenting). I respectfully dissent.
The essence of this case is that the claimant is an infant of tender years and thus entitled to a degree of care greater than that ordinarily afforded to an adult (Harrow v. State of New York, 21 A D 2d 571). While the majority opinion readily concedes this, it places great stress upon the claimant’s status as a trespasser in denying a recovery. Yet, even trespassers are protected from the infliction of intentional, wanton, or willful injuries and from affirmative acts of negligence (Carradine v. City of New York, 13 N Y 2d 291), and the maintenance of an inherently dangerous condition, as the trial court found in existence, without exercising a high degree of care, has been determined to be the equivalent of a willful, wanton or intentional act (Mayer v. Temple Props., 307 N. Y. 559).
As a just and proper resolution of this controversy demands a firm understanding of what is entailed in the increased duty owed to young children, an examination of relevant case law is in order. Thus, while the State need not “ child proof ” its entire highway system (Harrow v. State of New York, supra), children are, nevertheless, entitled to “ care proportioned to their inability to foresee and avoid the perils that they may encounter ’ ’, and ‘ ‘ the duty to avoid doing them an injury increases with their inability to protect themselves and with their childish indiscretions, instincts and impulses ” (Garrow v. State of New York, 268 App. Div. 534, 537-538, affd. 294 N. Y. 741). They must be expected to act upon these “ instincts and impulses ”, and ‘ ‘ others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly ” (Day v. Johnson, 265 App. Div. 383, 387). Even though the doctrine of attractive nuisance is not applicable in this State, a court will take into consideration the well-known propensities of children to climb about and play (Collentine v. City of New York, 279 N. Y. 119) and will recognize a lack of awareness on their part of dangers which would be clear to a more mature person (Molnar v. Slattery Contr. Co., 8 AD 2d 95).
*496Applying these principles to the instant case, we find that the Trial Judge has embodied them as the heart of his decision. Thus, he reasonably concluded from the facts as he found them that it was foreseeable that young children would come in contact with the defective fence and the open catch basin in their neighborhood and that such a condition was extremely dangerous (cf. Harrow v. State of New York, supra), and, recognizing the propensities of children to climb about and play (cf. Collentine v. City of New York, supra) and their lack of awareness of danger (cf. Molnar v. Slattery Contr. Co., supra), that it was likely that these neighborhood children would explore this dangerous condition, with its easy access, at great risk of personal injury to themselves. Such being the case, the defendant should have taken precautions accordingly to see that this area was safe (cf. Day v. Johnson, supra).
A review of the factual findings upon which the court below based these conclusions finds all with substantial support in the record, and, as the condition in question was undeniably located adjacent to a highly populated residential area, I take particular issue with the majority’s contention that it was not inherently dangerous, “ especially in view of its inaecessability and removal from the public way ”. When one considers all of these factors, as well as the disadvantageous position of an appellate court in being limited to the written record alone in reaching its decisions (7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5501.20), it becomes clear that the determinations of the Trial Judge here should not be lightly disregarded or dismissed.
The judgment should be affirmed.
Staley, Jr., J. P., Greenblott and Cooke, JJ., concur with Reynolds, J.; Main, J., dissents and votes to affirm in an opinion.
Judgment reversed, on the law and the facts, and claim dismissed, without costs.