Opinion
Argued November 13, 1974
Decided December 20, 1974
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, THOMAS P. FARLEY, J.
Irwin Littman for appellants.
Sherwin Rear for respondent.
MEMORANDUM. Order affirmed, without costs to either party. There is no evidence that defendant was aware of, authorized or consented to the presence of the plaintiffs in or upon its business premises.
This accident occurred on a Sunday afternoon when the plant was closed for business to the public. John Mills, an employee of defendant, took Cheryl Warmsley and her 17-month-old son to the premises, unlocked the door and invited them inside. As they watched, Mills set up the motorized conveyor belt to move bananas to load his truck for future delivery. The child at all times remained in the custody of its mother who testified that she kept hold of his hand. The adult plaintiff, when first walking past the moving belt, had her body interposed between the belt and the child. When retracing her steps, she allowed the child to walk next to the belt and the child caught his hand in the belt.
Viewed in the light most favorable to them, plaintiffs entered the premises for their own purposes, to keep John Mills company. There is no evidence that defendant knew or had reason to suspect that its place of business would be opened on this Sunday to plaintiffs, or that a motorized conveyor belt would be set up and placed in operation in their presence.
Before the defendant is cast in liability, it must appear that defendant breached a duty owed to plaintiffs, and such breach proximately caused the injury complained of. There is no showing of defendant's knowledge of any likelihood of plaintiffs' presence at such times as would amount to an acquiescence from which defendant's consent could be inferred.
The belt was not an inherently dangerous object. Its operation was so visible that the danger, if any, was open and apparent. The risk of injury could easily and reasonably have been avoided. Plaintiffs have failed to show even a breach of reasonable care by defendant.
The belt was not defective and was being used for its intended purpose. Nor is there any proof that Mills, defendant's employee, failed to use the measure of care called for by the circumstances. Of course, if defendant were negligent, the fact that the mother of the infant failed to exercise reasonable care would not bar recovery to the infant even though the infant was in his mother's custody (Restatement, Torts, 2d, § 488, subd. [1], Comment c). No legal cause is shown to impose liability upon this defendant.
I agree that the order of the Appellate Division should be affirmed. There was no evidence at the close of plaintiff's case from which the jury could have found that there had been negligence for which defendant could be cast in liability.
As more fully stated in my concurring opinions in Martinez v. Kaufman-Kane Realty Co. ( 34 N.Y.2d 819) and Mevorah v. Garyn ( 35 N.Y.2d 934), I would hold the property owner to the standard of reasonable care. And although I would consider it unnecessary to first categorize the plaintiff as a licensee, I am in basic agreement with the view expressed by the Appellate Division dissenters that the jury could have found on this record that the "defendant, through its authorized employees, failed to exercise the care required under the circumstances to protect the child from the danger of coming into contact with the machinery."
Accordingly I would reverse and grant a new trial.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, RABIN and STEVENS concur in a memorandum; Judge JONES concurs in result in a separate memorandum; Judge WACHTLER dissents and votes to reverse in an opinion.
Order affirmed, without costs, in a memorandum.