80 A.D.2d 281 | N.Y. App. Div. | 1981
OPINION OF THE COURT
Rochester Telephone Corporation (RTC) and the Fair-
Actions to recover damages were commenced against the Boyles, the Village of Fairport and the Fairport Municipal Commission. The Boyles then instituted a third-party action against RTC and People’s Cable, alleging that those corporations owned and controlled the poles and the electric wires which passed through the tree on the Boyle property and that it was the obligation and responsibility of these third-party defendants to properly inspect the said electrical wiring and to trim and maintain the tree. People’s Cable also asserted a cross claim against RTC. Both third-party defendants moved for summary judgment and RTC also moved to dismiss the cross claim brought by People’s Cable. This appeal results from a denial of these motions.
At an examination before trial representatives for the various companies testified that each company was solely responsible for maintaining its own wires including any necessary tree-trimming. The condition of the pole was not a factor in causing the injury to the child. The only question raised concerned the allocation of responsibility for trimming branches away from the wires. A representative of the Fairport Municipal Commission testified that his company had easements allowing it to trim trees whenever necessary. RTC’s representative testified that the telephone company
Third-party plaintiffs assert that the child was injured not because he touched either of the cables belonging to the third-party defendants but because he was able to gain access to the 2,400-volt electrical line by climbing the untrimmed branches around the telephone and cable television lines. Thus, it is argued that these third-party defendants were guilty of actionable negligence requiring a factual determination based on the single standard adopted in Basso v Miller (40 NY2d 233, 241), that is, “reasonable care under the circumstances whereby foreseeability shall be a measure of liability.” It is contended that both third-party defendants knew that on the same pole with their lines was a 2,400-volt electrical line that could cause injury to a person who touched it, that both were familiar with the well-known hazards and danger of exposure to the high voltage line and that foreseeability of injury to someone near the line was clear to them.
Liability is predicated on the theory that it was a foreseeable consequence of third-party defendants’ failure to trim the lower branches of the tree nearest the telephone and television lines that someone would climb the tree as high as the 2,400-volt power line by using the untrimmed branches and become injured. Thus, the issue is whether
In cases involving the duty of landowners toward persons found on their property, New York has abandoned the distinctions concerning the status of such persons as trespasser, licensee and invitee and, as third-party plaintiff points out, has adopted “a single standard of reasonable care under the circumstances whereby foreseeability shall be a measure of liability” (Basso v Miller, 40 NY2d 233, 241, supra). Utilities have an affirmative duty to exercise reasonable care in the operation and maintenance of their power lines, and the degree of precaution required is largely a function of the inherent danger to the public of coming into contact with lines and “there is, to be sure, a correspondingly higher duty of care owed as higher voltages are transported” (Miner v Long Is. Light. Co., 40 NY2d 372, 379). Where a duty is established, foreseeability is a measure of liability. “In such a case, it can thus be said that foreseeability is a limitation on duty” (Pulka v Edelman, 40 NY2d 781, 786; see Palsgraf v Long Is. R. R. Co., 248 NY 339, 344).
In the instant case third-party defendants reasonably discharged their duty without trimming the tree. The undisputed testimony at the examination before trial established that the telephone line presented a negligible risk of shock to persons coming into contact with it and the cable television line presented no risk at all. Although the law recognizes the “well-known propensities of children to climb about and play” (Collentine v City of New York, 279 NY 119,125), it was not foreseeable that a child climbing the poplar tree on the Boyle property would be hurt
Third-party plaintiffs would seek to impose a duty on anyone with an interest in real property to take affirmative steps to prevent their property from being used as a point of access to property which they have reason to believe poses a potential danger to the public. They cite as authority a number of cases in which a duty was imposed on municipalities for failing adequately to fence in playgrounds so as to prevent access to adjoining railroad property. In each of the cases children left the playgrounds and were seriously hurt or killed while playing in the adjoining railroad yards (see Scurti v City of New York, 40 NY2d 433; Leone v City of Utica, 66 AD2d 463, affd 49 NY2d 811; Lukasiewicz v City of Buffalo, 55 AD2d 848). In each of these cases, however, the municipalities operated playgrounds and invited children to play in them. The cities then either negligently maintained or failed to erect fences between the playgrounds and adjoining railroad property. In each case the cities knew or should have known that children were leaving the playgrounds to play near or on the trains. In Scurti v City of New York (supra), for instance, four other children had been electrocuted, two of them within two months of Scurti’s death.
In the cited cases the issue of the existence of a duty never arose. The only issue was whether the actual harm was encompassed by the duty, i.e., whether it was foreseeable. The cities were not insurers of the children’s safety, but
The existence of a bona fide issue raised by evidentiary facts and not based on conclusory or irrelevant allegations is necessary to defeat summary judgment (Rotuba Extruders v Ceppos, 46 NY2d 223; Muller v Sturman, 79 AD2d 482; Goldstein v County of Monroe, 77 AD2d 232, 236). In this case third-party plaintiffs have failed to show evidentiary facts to establish a duty on the part of the third-party defendants to trim the tree in question sufficient to require a trial of any issue of fact, i.e., whether there was a breach of duty which was the proximate cause of infant plaintiff’s injury (CPLR 3212, subd [b]; see Zuckerman v City of New York, 49 NY2d 557; Freedman v Chemical Constr. Corp., 43 NY2d 260; Basso v Miller, 40 NY2d 233, 242, supra).
Since the third-party action against People’s Cable should be dismissed, its cross claim against ETC should also be dismissed as academic without reaching the merits.
Accordingly, the motions of the third-party defendants should have been granted and the third-party complaint and cross claim dismissed.
Cardamone, J. P., Simons, Hancock, Jr., and Denman, JJ., concur.