We respectfully dissent because the record fails to reveal evidence of any negligence on the part of the defendant, City of Utica.
As the majority state, it is well settled that a landowner may be liable for injuries that occur on his property or, in some circumstances, on nearby property. That is not to say, however, that a landowner is an insurer of all who come upon his property; his liability is not endless, but limited by basic principles underpinning the fault theory of tort law—reasonable care and proximate cause. Today the majority have ignored these principles and hold a landowner liable for an accident that occurred on the property of another, a substantial distance from the landowner’s property and having only the most tenuous connection with it.
Gilmore Park is a "park” in name only. Except for a playground area, Gilmore Park is neither groomed nor maintained. For the most part it is a rough and heavily wooded area upon which no improvement has been made. Its topography is indistinguishable from that of the private lands that border it on the north and south. Long before the playground was built, it and the neighboring tracts had been used by the local residents as a place to play or take walks. Gilmore Park and the adjoining private parcels are interlaced with trails and paths. There is no indication in the record that the construction of the playground caused more children to enter the wooded area of Gilmore Park than had previously used it.
The plaintiff, who was eight years old at the time of the accident, testified at this trial seven years later (aged 15) that he was injured on the railroad tracks at a point approximately midway on the western boundary of Gilmore Park. However, the credible evidence of the police officer and the ambulance attendant who came to the scene to render aid to plaintiff proves that the plaintiff was injured much further south, at a point 250 feet southerly of the southern boundary of Gilmore Park and approximately 600 feet from the playground. Plaintiff virtually concedes as much in his brief. Other testimony by the plaintiff that he chased the northbound train toward the park is further proof that he and his companions had wandered even further south and were at a greater distance *471than 600 feet from Gilmore Park immediately prior to the accident.
At the trial the plaintiff contended that the city negligently maintained Gilmore Park and that this negligence was what caused his injury. Negligence, of course, is the failure to conform one’s conduct to a "standard established by the law for the protection of others against unreasonable risk of harm” (Prosser, Law of Torts [4th ed], p 146). The duty of care that the city, as a landowner, owed the plaintiff is measured by a "single standard of reasonable care under the circumstances whereby foreseeability shall be a measure of liability” (Basso v Miller, 40 NY2d 233, 241). Foreseeability is a difficult measuring rod to apply. It is to be determined by considering the circumstances as they existed prior to the injury. Its application comes, however, only after the event has occurred when, with the gift of hindsight, it is tempting to conclude that an event was foreseeable. Liability attaches only when one disregards a risk that reasonably could have been perceived. When the city established a playground in Gilmore Park it was foreseeable that children might be injured on the apparatus installed there or that children using the playground might enter the nearby woods and fall into Hallecks Ravine.
The testimony at the trial shows that this plaintiff entered. Gilmore Park at the playground and then, by a meandering route, proceeded out of the "park”, across several privately owned lots, over an area known as Zoar Avenue (a "paper” street), crossed more privately owned land, and finally came to the Erie Lackawanna roadbed. In the process of traveling over more than 600 feet of rough terrain, plaintiff negotiated an eight-foot deep ravine and climbed a five-foot high embankment. As the train proceeded northward the plaintiff, an eight-year-old boy, was able to catch up to and pass at least the last car. Then, according to his testimony, while running along the east side of the train he "either tripped or something”. The wheels of one of the cars then passed over his right leg almost completely severing it.
In our view it was not reasonably foreseeable that this eight-year-old child would leave the playground, traverse this much territory and eventually be injured by a train traveling so slowly, i.e., eight miles per hour, that this youngster could successfully chase and catch up with it. Since this accident was not reasonably foreseeable, the city owed the plaintiff no *472duty to protect him from it. To create such a duty, as the majority does, is to require that barriers be built and maintained surrounding every parcel of the land upon which children may come regardless of the remoteness of the risk. To cast a landowner in liability for its failure to undertake these measures is unfairly and unduly burdensome.
Not only was the city not negligent, but no act or omission on the part of the city can be held to have caused this tragic accident. Determining legal or proximate cause consists of more than the mere application of the principle sine qua non, much less the invocation post hoc ergo propter hoc. Some of the tests found useful in determining whether proximate cause exists are the status of the plaintiff, temporal duration, spatial duration, foreseeability and public policy (Pagan v Goldberger, 51 AD2d 508). Many events may contribute to an accident, but all are not necessarily the proximate cause of it. Proximate cause is a flexible, almost intuitive, doctrine that extinguishes liability at a point dictated by common sense, policy and a “rough sense” of justice (Ventricelli v Kinney System Rent A Car, 45 NY2d 950). In this case time and distance eroded any legal relationship between the plaintiff and the city created by plaintiff’s original presence at the playground. As noted, the injury was not foreseeable and _ there is no public policy that a municipality becomes the insurer of every person who can retrace his path from point of injury to a parcel of public property, no matter how far removed.
In addition, it is difficult to conceive how the precaution suggested by the plaintiff and adopted by the majority would have prevented this accident. Warning signs plainly would have been no more effective to this eight year old than the verbal warnings plaintiff’s mother testified that she gave, and which plaintiff acknowledged receiving, concerning the specific tracks where plaintiff was injured. Neither a supervisor nor a fence around the playground would have prevented the plaintiff from leaving, because children freely came and went in the playground. Given the nature of the terrain, children’s activity in the remainder of Gilmore Park could not have been supervised in any practical way. A fence completely enclosing Gilmore Park, though it might have dissuaded a person from leaving the “park”, would not have prevented a person from reaching the railroad tracks from the adjoining properties. Thus, to claim that this nine-acre parcel should have been *473enclosed by a fence is both impractical and unfeasible; and to claim further that it would have prevented the accident is highly speculative conjecture.
We do not find as the majority do a precedent for their holding in Lukasiewicz v City of Buffalo (55 AD2d 848) or in Scurti v City of New York (40 NY2d 433) where the complaint against the city was founded on "the negligent maintenance of its park fence all but abutting on the railroad yard with its overhead electric wires and boxcars used for play by children and adolescents.” (Scurti, supra, p 443, concurring opn per Chief Judge Breitel.) The asserted liability here is based not on the city’s failure properly to fulfill some duty it has undertaken to perform such as maintaining a fence as in Lukasiewicz and Scurti, but rather on the failure of the city to fulfill a responsibility it has not elected to assume—that of protecting plaintiff from harm by erecting a fence or providing supervision or other means of keeping plaintiff from finding his way from the playground over adjoining property to the railroad. Therein, we think, lies the crucial distinction (see Florence v Goldberg, 44 NY2d 189, 197, 198; Weiss v Fote, 7 NY2d 579, 587; Moch Co. v Rensselaer Water Co., 247 NY 160, 167). In order to reach this result, the majority have misapplied the rule.
In short, one must conclude that this verdict was a product of understandable sympathy from a jury swayed by the exhibition of the plaintiffs very serious injury and the passion evoking testimony of a doctor who described the terrible and intense pain that this youthful plaintiff suffered. It is the duty of a court to examine the facts and determine whether those facts will, as a matter of law, support a finding of negligence (cf. Quinlan v Cecchini, 41 NY2d 686, 689); and, assuming negligence, whether that negligence was the proximate cause of the injury (Ventricelli v Kinney System Rent A Car, 45 NY2d 950, supra).
Since there is no proof that the city was negligent, we vote to reverse the judgment and dismiss the complaint.
Moule, J. P., and Schnepp, J., concur with Dillon, J.; Cardamone and Hancock, Jr., JJ., dissent and vote to reverse the judgment and dismiss the complaint in an opinion by Cardamone, J.
Judgment affirmed, with costs.