Opinion
December 3, 1951.
About 8:30 P.M. on July 4, 1950, the infant plaintiff entered the beach area maintained by defendant village, at a time when the general public was permitted to enter without the payment of an admission charge. The infant plaintiff was injured when a Roman candle was discharged by one of the boys in a group of the infant's friends. In this action to recover damages for the injuries sustained by the infant plaintiff and by her father for loss of services, the jury found for plaintiffs on the theory that the village could have or should have reasonably foreseen this accident and that it was the duty of the village in the exercise of reasonable care to have provided supervision of some nature to suppress the illegal act of exploding the fireworks. Judgment entered on the verdict reversed on the law, with costs, and complaint dismissed, with costs. There was no duty on the part of the village to suppress the nuisance in question created by third parties in the village park. Passive acquiescence in allowing the nuisance is not sufficient to impose liability on a municipal corporation. ( Whittaker v. Village of Franklinville, 265 N.Y. 11.)
Carswell, Acting P.J., Johnston and MacCrate, JJ., concur;
Maintenance of a park or beach area by a municipality is a quasi-private or corporate function whether an admission fee is charged ( Augustine v. Town of Brant, 249 N.Y. 198) or not ( Whittaker v. Village of Franklinville, 265 N.Y. 11). Where a fee is charged, the enterprise must be considered as one conducted for profit, in which case the municipality is not immune from liability for negligence in failing to provide protection for patrons ( Augustine v. Town of Brant, supra). In the Whittaker case ( supra), the park was not maintained for profit, and that distinction was there made. Here, entrance to the area from 9:00 A.M. to 6:00 P.M. could be had only upon payment of a fee, and from 6:00 P.M. to 11 P.M. without charge. The accident occurred at about 8:45 P.M., but the time factor has no determinative consequence. The liability or nonliability of the municipality is constant, depending on whether the subject area is operated for profit. The duty owed to a patron who entered the area upon payment of a fee did not change after 6:00 P.M.; nor was it different as to one who paid the fee or as to one who entered after 6:00 P.M. without payment. Adel, J., concurs with Wenzel, J.