Opinion
June 16, 1997
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Ordered that the order is affirmed insofar as appealed and cross appealed from, without costs or disbursements. On a Sunday afternoon, the 14-year-old plaintiff Michael Christopher Libby and two friends went to the site of a supermarket under construction "to check it out". They entered the site through a hole in the fence, and climbed a scaffold up to the roof. It is undisputed that one of the youths lit a propane torch and the other deliberately kicked over a bucket of flammable liquid which got onto Michael's clothes. The accounts vary as to whether Michael himself was holding a paint roller to the torch in order to ignite it when his clothes caught fire or whether he was standing with his back turned to the youth with the torch at the time.
The court properly found that the conduct of the infant plaintiff and the other youths constituted a superseding cause of the infant plaintiff's injuries as a matter of law (see, Kriz v Schum, 75 N.Y.2d 25, 36; Boltax v. Joy Day Camp, 67 N.Y.2d 617; Elardo v. Town of Oyster Bay, 176 A.D.2d 912). Under the circumstances presented, it would be unreasonable to charge the defendants with a duty to protect the infant plaintiff against the harm incurred (see, Burgess v. City of New York, 205 A.D.2d 656). This is not a case where "the injury-producing act was `a normal or foreseeable consequence of the situation created by the [defendants'] negligence' * * * nor does it present a scenario where `the intervening, intentional act of another is itself the foreseeable harm that shapes the duty imposed'" (O'Britis v. Peninsula Golf Course, 143 A.D.2d 123, 125, quoting Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, and Kush v City of Buffalo, 59 N.Y.2d 26, 33).
The contentions of the defendants Shirley Drive-In Associates, L.P., and Lerner-Heidenberg Associates that they are entitled to contractual indemnification from the general contractor and roofing subcontractor, at least to the extent of recovering attorney's fees, are without merit, since the contractual provisions relied on are inapplicable under the circumstances (cf., Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 178).
Miller, J.P., Copertino, Sullivan and Altman, JJ., concur.