*1 v. State Appellants, et al., New No. 49770.) Respondent. (Claim 25, 1971. Department, June Fourth Ward, Gormcm & Marx (John Marshall Gorman of counsel), for appellants.

Louis J. LefJcowitz, Attorney-General (Jeremiah Jochnowits and Ruth Kessler Toch of counsel), for respondent. J. Claimants appeal from judgment dismissing

Cardamons, their claims for damages from an resulting* assault upon them escaped convict. The Trial held Judge that the State was its supervision Moseley, convicted murderer whose vicious and remorseless character was known to the authorities and whose confinement was not merely for punish- ment but also the protection of society.

We are asked to conclude, the trial court did, that claimants are barred recovering damages against State ground that claimants assumed the risk were guilty of con- tributary negligence. be found cannot This we cannot do. One appears time that at to have assumed the risk unless danger fully appreciated he was thereof he knew *2 App. (McEvoy City Div. about encounter New to p. Comment, and affd. 292 N. Y. N Y 2:55 PJI knowledge toas In our view have such claimants did not appreciate fully danger they into which entered. to evidence We also find that the record contains insufficient ’

support precludes them a determination that claimants conduct analysis following against The the State. inescapably the facts leads to this conclusion. years prior claimant,

For Mrs. three to this incident, Kulaga, unoccupied maintaining had been her mother’s widowed premises Dewey at 278 Pursuant New York. Avenue, Buffalo, responsibilities Kulaga premises to these visited the approximately was once a week make sure that the furnace operating being and removed, that heat was snow maintained, arranged lawn cleaned on mowed, and she to have the house weekly a basis. Mrs. with these claim- mother lived ants and their three small New York. Island, children on Grand Kulaga Dewey Mrs. a and had lived at 278 Avenue child right, marriage. clearly until sometime after her She responsibility, regular premises and even a to visit these basis. phone

She testified that on March call 20, 1968 she received Agency Employment at about 2:00 p.m. from the New York State regarding cleaning Dewey woman to 278 Avenue. She sent thought practical joke requested any it was a since she had not neighbor one be sent there. Nevertheless she called a former reported asked her to check on to her the house. It was back (following by inspection neighbor’s son) doors relayed nothing wrong. Kulaga were locked and then was Mrs. evening employment agency. this information to the Later that Kulaga phone at 8:00 Mrs. Zella received a call one p.m., by cleaning Moore, who identified woman sent herself as the employment agency. Kulaga Zella Moore informed Mrs. orange peels apple there were floor that one of reportedly slept the beds as if looked it had been in. Mrs. Moore your Kulaga, something funny going told Mrs. don’t let on, go mother in the house ”. Mrs. told Mrs. alone Moore also Kulaga that left p.m. she the house about 2:00 because she became frightened Mrs. when no one had come time. When Kulaga immediately speaking with she Moore, finished Zella Department and asked them to check called the Buffalo Police telling phone telling previous call them of the house, and that the house valuables in them that there were no unoccupied. police would told claimant officer evening that her claimant remembered check into it. Later that grandfather gun became con and she attic, in the had left teenagers cerned that obtained entrance morning might injure Accordingly, at next themselves. police again her about told them 7:15 a.m. she called the accompany regarding* gun police to concern and asked the that she was told it. testified her to the house to remove She changing should and that she that the shifts would be however, decided, back Mr. call at 8:30 a.m. morning Kulaga’s going prior Mr. to check the house that her husband work. Mrs. that when she and testified saw arrived at the the back. She house, walked around *3 panes it that that broken, one of in the window was the cellar by pane, was a small 12-inch and further testified 18-inch she 1‘ saying that she it have been remembered her husband must to getting very person to children in small there; would take through opening crawl that ”. City by police employed

Albert Andrews, officer the duty that Buffalo, 16, on March 1968 at Precinct testified 20, precinct Hospital, hospital Meyer the included Memorial Moseley Dewey escaped that Avenue and the from, also included premises. Moseley police He that aware that stated the were escaped, were searched the on the look-out for and had him, area on the afternoon of the but that the circumstances 20th, Dewey cleaning in connection with 278 Avenue and the woman any Kulaga and the call from Mrs. did occasion connection not Moseley cleaning in his mind with the affair. He said any application” in woman to the wouldn’t have Moseley Kulaga escape. suggested police In fact that Mrs. the anything missing. run over to the house to see if was Hugh police duty morning, following the Neff, officer on the agreed March 21, 1968, testified a witness for the State. He anyone gun get out. with vacant house would want to the nothing He in with also stated that there his conversation was understanding day or his what went on the before suspicious being him that would make in the house, possibility Kulaga. and that he did not mention the this Mrs. phone Department Thus, there were three calls to the Police by by employment agency) (two claimants and the one put police suspicion never alerted the dangerous or them on that someone lurking premises, escaped the let alone an responsi- dangerous charged police, the killer. with These apprise bility apprehending did convict, possibility danger. claimants of even the Contributory negligence, negligence is based itself, like contributory duty owing prevent injury. In the case of duty plaintiff injury himself. is the that the avoid regard. Every person required is in that to use reasonable care only. degree ordinary required In other of care care protection plaintiff care the the words, which a must use for own his prudent person use under similar reasonable, would protect injury. (Clark Traver, circumstances to 205 himself from App. Div. affd. 237 N. Y. Warren’s Contributory Negligence, 10.10.) Claimants’ conduct §§ 1.01, setting is to be in circumstances, evaluated its claim- assumptions ants are make entitled to that are reasonable light (James, Contributory Negligence, 62 Yale of them L. J. considering responsibility

Under these circumstances right as well as be on claimant had to premises Dewey at her onto such entrance Avenue, premises may the conduct be construed to be other than person prudent that a circum- would use under like protect calling injury. stances to himself from Her actions neighbor, employment agency, a former possible danger might what she result believed teenage from children, or the fact that she was vandals, sufficiently enough careful to take her her, husband prudent in view of what she be construed knew, should not *4 contributory negligence. to be record reveals brief, In this guilty the claimant as a not was, fact, matter of any recovery contributory negligence of which bar her should here. contributory degree

However, even if we assume some of negligence part regards risks, other of these claimants as nevertheless when the harm not result from to the claimants does the hazard which their in some conduct has created but results contributory negligence, manner, other such other such there recovery (Restatement, 468). be, does not bar § their Torts 2d, negligence only Just as is actionable on account of the harm scope (Palsgraf Long which was within the v. Is. of the risk 339) entry Co., R. R. N. 248 Y. so claimants’ into Mrs. may respect mother’s house have been with to the being upon by teenage of hazard set children or but was vandals, being raped by unrelated to the risk and robbed Negli Contributory Harper (2 Torts, Law of killer and James, 98), p. gence, Palmer, Conn. v. 1230; § 22.0, Kinderavich agreement differ general observes, As Prosser there contributory negligence is that ence between recovery injury hazard or only from results latter bars when plain negligent, but plaintiff’s conduct which makes the risk care reasonable failure exercise tiff is not barred when his injury safety risk or exposes a foreseeable for through own his him through injured another in fact, one event he is, pp. [3d 431- (Prosser, ed.], Torts which he could not foresee 233). Contributory Negligence, Rev. L. 21 Harv. 432; Boehlen, exposes Again, plaintiff negligently one himself “where negli recovery by danger is not he barred contributory danger through gence injury result another where the is received clearly ing to be negligence. This seem from defendant’s would ” Negli (1 applied Warren’s the rule courts of State. Contributory gence, p. v. 462; Underhill § 11.04, Major, App. Rome, v. N. Y. Webster Div. affd. 247 Ogdensburg Co., R. 115 Y. & R. N. Watertown present clearly unequivocally estab- The facts in the case assuming to exer- failed lish that even claimants, these safety exposed them cise reasonable care for their own which injury were in fact cause, to a foreseeable risk of one possibly injured through have another event could Only by hindsight drawing viewing facts from foreseen. charged most extreme inferences could claimants be danger foreseeing safety. their the trial court Since guilty could not reach the conclusion that these claimants contributory negligence any interpretation fair of the under (Citta A we must 35 D evidence, reverse. State New 288.) 2d guilty

We conclude, that these were not therefore, claimants contributory negligence in this on the conceded facts record recovery. judgment which would bar their of the trial court dismissing their claim be should reversed and the matter remitted damages. assessment J.

Wither, I (concurring). concur the result reached by majority, limited basis although were guilty of contributory negligence which the direct cause of their injuries, should barred from recovery, *5 because the of their conduct was not consequence foreseeable. although

At the outset be noted should the State did (the cross-appeal judgment being favor), in its it has the right appeal Judge to on contend that the Trial erred in holding negligent permitting to State in proximate the was escape a cause o£ claim- and that snch was ’ liability subject injuries, rendering therefor ants to the State par. Carmody-Wait (CPLR York 2d, subd. New [a], 36 A D Sons, & Practice, 70:336-70:337; cf. Hutter Levitt §§ agree 758). the 2d I think that we must Nevertheless, Moseley, Judge’s holding respect. The Trial in this nature offending prisoner, background his reasons the his and the dangerous his confinement make it clear that knew of the State security required special to character and that measures were (cf. insure his confinement Williams v. State New Moseley, N. Y. The manner in handled which State resulting escape hospital care, his after release from properly principle negligence. found to under- constitute lying (7 579), upon Weiss v. Fote N State, Y 2d relied may pass permitted trier of wit, the facts not be governmental judgment reasonableness of the body, apply liability does not to relieve for such the State conduct. ’ Turning question contributory negligence, to the of claimants there are some facts in the in addition to those contained record majority point up opinion, recited acknowledged conduct of claimants and which should application contributory negligence face of our limited herein of principles. lady cleaning Such additional facts are: the advised Kulaga Mrs. that when $10 she went to the house found she cleaning; requesting general on the desk with a note do her to Kulaga Moseley’s daily Mr. picture had seen Mr. news- in the paper large and had read therein that at ; he had and was night visiting Kulaga before Mr. the house Mrs. asked go over and check house, said, Heck, no, and he go tonight”. I won’t over there Claimants also checked with Mrs. uncle and he had ascertained that not called cleaning lady go morning to the The next house. impatiently by-passed check the decided to house They themselves. walked around the house and found a cellar entering, window broken out, were deterred go neighbor previously nor moved to to the home who police again checked the house doors for them, to call the entering. Kulaga got obtain assistance Instead, out her key to unlock a door to the house and Mr. went to his automobile and took out a crowbar and carried it into the house together. up steps entered walked Inside, few opening to the main floor level and on a door thereto found *6 ‘‘ holding gun. said, man man Come to their left the hall — you”, seeing Mr. I won’t hurt on the crowbar “ Kulaga’s you expecting Mr. trouble?” hands Are said, if “Yes”. The intruder asked answered, ‘‘ you they are knew was, said, Yes, who he and Mr. Moseley” newspaper picture (recognizing him from the “ night before), I am the fellow article of the said, Meyer (hospital) that He the crowbar ”. ordered dropped, up which off their claimants, it he tied took was; money raped Kulaga, Mr. clothes, took their keys clothes car and left with their car. agree

In view of all the that must with the facts, I believe we Judge Trial reasonable care for claimants did exercise safety entering their entry As of their the house. the direct result injuries sue in

therein, received the for which proximate action, their conduct was the cause is, injuries. their damages directly negli-

In most cases the which ensue from gent reasonably conduct are held foreseeable, and the actor is responsible for such conduct. which befell the fate Thus, entering reasonably claimants on their house were foreseeable agree Judge we would Trial the conclusion damages claimants’ conduct them from herein. bars police, It must be borne in who mind, however, that even the looking Moseley, him house. Thus, did not relate to this imprudent entering however with- claimants were on light out knew, assistance in of facts which then reasonably cannot be found that what then occurred to them was foreseeable. consequence We have a case, therefore, wherein the direct ’ negligent

of claimants conduct was not foreseeable. problem In few cases has occurred and been considered in (see Palsgraf Long detail Co., Is. R. R. 248 N. Y. 339; Over Eng. Tankship [The seas Ltd. v. [U.K.], Morts Dock & Co. Wagon Mound], ^[1961] A. C. ^[1961] All Eng. Rep. 404). negligence (contributory negligence) In some cases, has been theory intervening ruled out on the of remoteness or cause; explanation dispose does of the fact that the actor’s injuries. conduct was a direct cause of his In the Overseas Tankship (supra), expressly case the House of Lords overruled 1921case (In re Polemis, 3 K. B. 560 ^[1921] All Eng. Rep. 40) damages directly which ing had held defendant liable for all result from the defendant’s act. In the Overseas Tank- ship employees spilled negligently case defendants’ oil into a spread ignited harbor. The oil across the harbor spark shipbuilder’s damage from a torch and resulted. fire damage The court held that the fire was unforeseeable and that overruling the defendant was, In therefore, not liable for it. ([1961] p. 422): the Polemis case the court said A. For C. justice it does not seem consonant with current or moral ideas of ity negligence, slight that, for an act of or venial, however damage, results in some trivial foreseeable the actor should consequences, liable for all however unforeseeable and however *7 ‘ ’ grave, long they so can be said and the court ”; to be direct ‘‘ page why continued at 423: if it is asked a man should For, responsible necessary probable be for the natural or conse or quences (or any description them), of his act other similar of necessary the answer is that it is not are natural or because probable, judged, quality, or since because, have this it is ought the standard of the reasonable that he to have * * # man, foreseen liability again them. Thus it is over and over that, consequence imposed ground

for a has been reasonably alternatively ground it was foreseeable or the necessary probable. it was grounds natural or or The have two they largely been treated as are. coterminous, But, so question where wrong are the not, arises to which the answer given imposed in Polemis. if For, must some limitation be consequences negligent for which the actor is to be — responsible agreed held and all are that some limitation there be—why must (reasonable foreseeability) should that test be rejected judged by which, since ishe what man the reasonable ought corresponds to foresee, with the common conscience of ‘ ’ (the consequence) a mankind, test direct be substituted never-ending which leads to nowhere but insoluble problems of causation ”. “ page At 424 the court a added: After the event fool even hindsight foresight is wise. But it is not the fool; it is responsibility. a reasonable man which determine alone can ‘ ‘ ’ by substituting reasonably The Polemis rule direct for fore- ’ consequence equally illogical seeable leads to a conclusion unjust (p. 426) ”. The court further stated foreseeable damage damage negligent and also unforeseeable result may conduct, the fact that the liable for defendant be held consequences negligence require foreseeable of his does not responsible consequences he also be held for the unforeseeable thereof. Each fail of them rests on its own bottom and will damage if it can be established that the could not be ’ foreseen ’. negligent respect con- I am mindful that defendant’s with resulting injury may is duct he often held liable for (see consequence Jur., 41 N. Y. not the normal conduct of such Negligence, 37). Although principle been enunciated has § this negligent protection society against of indi- acts (see [3d ed.], viduals therein Law Unforesee- of Torts Prosser, light applied Consequences, pp. 288-289), able in it must be including totality precepts negligence, in the law of Tankship foreseeability. case rule of reasonable The Overseas (supra), although dealing negligence of a defendant plaintiff, directly point respect, not of in is Palsgraf (supra), supports principle. case also question

Moreover, the case at bar the is whether contributorily negli- negligent. distinguished from the As gence contributory of a the doctrine of defendant, prevent plaintiff was established to injury helped duty which he which an to cause. magnitude individual owes to himself is of he owes to than that which less society general Grega, (Rossman N Y 2d v. La 300; and see Restatement, c; Torts 2d, § 468, Prosser, Comment Contributory pp. 426-430). Law of It Torts, *8 contributory negligence also noted that the doctrine of has been suggestions (2 Harper criticized with for its limitation Contributory Negligence, James, Law of Torts, 22.3 §§ p. seq.-, p. 22.4, 1207 et of and see Prosser, Torts, Law Grega, supra). Rossman v. La

In view of the above I considerations, am forced to conclude despite knowledge large, that claimants’ was at apparently stranger might some had entered and be in the possibly having through house, entered in broken window, gun been left the house, it was not fore- dangerous Moseley, seeable as man, such would be there entry inspect and would assault them their (see supra, pp. Harper Prosser, 431-432; James, Law of pp. Torts, § 22.10, 1230-1231; Warren’s Contribu- tory Negligence, 11.04), 10.02 §§ and that claimants should not be barred from herein of their because conduct. Accordingly, I concur in the decision for reversal judgment and the remission for assessment of claimants’ damages. and Gabrielli, JJ., concur with Cardamons, J.; Del

Marsh opinion P., J. and Wither, J., concur in result Vecchio, J. Wither, facts, on the law reversed unanimously Judgment assessment Claims to the Court and matter remitted costs, damages. Inc., Respondent-Appellant, In Matter of Amusements, et Utica, al., City N. Mayor Assaro, Dominick Appellants-Repondents. June 1971. Department,

Fourth Solimando, A. Rocco J. Corporation Siegel Counsel (Nathan *9 counsel), appellants-respondents. JohnE. Flemma (Earle C. Rastoiv respondent- counsel), appellant. J. This appeal whether Amuse- presents question

Mould, Inc. is entitled ments, city to recover amounts paid for tax sale certificates taxes on 1963 and 1964 real property property in a condemnation city subsequently acquired in which the of confirmation December proceeding signed order 11,1968 vested title in the as of November city 22, 1963, and, at what rate of so. interest.