Argued November 18, 1976
Decided December 22, 1976
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ABRAHAM J. MULTER, J.
Steven Di Joseph, Charles F. McGuire and Thomas R. Newman, New York City, for appellants.
Raymond J. MacDonnell, Philip Hoffer, Rose L. Hoffer, Peter T. Affatato and Adolph B. Salib, New York City, for respondent.
As the result of a 1973 playground incident, Hampton Rhabb, the infant plaintiff, allegedly sustained a fractured patella requiring open reduction and resulting in permanent disability. In a suit brought on his behalf and by his mother, at the conclusion of their proof upon a trial to determine liability, the complaint was dismissed. The Appellate Division, one Justice dissenting, affirmed.
Defendant operated the Williamsburg Housing Project covering 16 blocks of Brooklyn real estate. Within this space were several playgrounds, all open to the public. One of these play areas, located at or near 164 Ten Eyck Walk, was about a half block in size. There was a fence around part or all of it, with paths leading therefrom to the street and to a basketball court. The playground was equipped with items such as a spider web, rocket, airplane and monkey bars. Children of tender years played there. It was unsupervised. Across the street was a school, I.S. 49, at which Hampton Rhabb, then 12, was a student.
There was testimony: that every noon hour on nice days from the beginning of school in September, 1972 until the day of the accident, a period of about four months, pupils from the school went to the playground; that on each of these occasions an unleashed black, shaggy dog about two or two and a half feet tall and belonging to one of defendant's employees was in the playground; that this dog during said period attempted to bite the infant plaintiff five or six times and on divers instances had chased other children, also trying to bite them. There was also proof: that during the luncheon recess period of January 8, 1973 the infant plaintiff went from the school to the playground with his friends Craig Chapman and Peter Martin; that they were playing tag for about 10 minutes when the dog barked and started chasing them; that the dog chased Craig and he jumped over a fence; that the animal then chased Peter and he climbed up the monkey bars; that the dog then went towards Hampton who started to run; and that, when the dog bit Hampton on the pant leg, he tried to break loose but fell at a point about six feet from the bars and could not get up.
It is the general rule that a municipality is under a duty to maintain its park and playground facilities in a reasonably safe condition (Nicholson v Board of Educ., 36 N.Y.2d 798, 799). It has been held that this duty goes beyond the mere maintenance of the physical condition of the park or playground and, although strict or immediate supervision need not be provided, the municipality may be obliged to furnish an adequate degree of general supervision which may require the regulation or prevention of such activities as endanger others utilizing the park (Caldwell v Village of Is. Park, 304 N.Y. 268, 273). When in the discharge of that duty it is or should be apparent, or it otherwise comes to the attention of a municipality, that its park or playground is being used as a site for patently dangerous activities and that such use is likely to be continued, the municipality may not ignore the foreseeable dangers, continue to extend an invitation to the public to use the area and not be held accountable for resultant injuries (p 275). Furthermore and more significantly, when practices or activities pregnant with danger take place with frequency and regularity and over an extended period it cannot be said that the condition of the playground was safe (cf. Caldwell v Village of Is. Park, 304 N.Y. 268, 275, supra; see, also, Nicholson v Board of Educ., 36 N.Y.2d 798, supra). Apart from questions relating to actual notice, when a defective and dangerous condition has existed for such a length of time that knowledge thereof could be acquired by reasonable inspection or supervision, then such party will be held to have known what he should have known as the result of such inspection or supervision (1 Shearman and Redfield, Negligence [Rev ed], § 21, pp 46-47; Magid v City of New York, 234 App. Div. 38, 42, affd 259 N.Y. 618).
Upon defendant's motion made at the close of plaintiffs' case, the test was whether there was any rational basis on which a jury could have found for plaintiffs, the plaintiffs being entitled to every favorable inference which could reasonably be drawn from the evidence submitted by them (4 Weinstein-Korn-Miller, N Y Civ Prac, par 4401.05). Despite questions of inconsistency of proof and credibility of witnesses, the motion should not have been granted because plaintiffs had by their proof made out a prima facie case. There was evidence that the black, shaggy dog had been in this public playground during the noon hour, when customarily visited by students, over a four-month period. During this interval, the animal not only chased these children but attempted to bite them. Under plaintiffs' proof, it could be found by the trier of the facts that defendant had constructive notice of a dangerous condition upon its playground, that defendant ignored this condition and failed in the exercise of the duty cast upon it to remove or prevent this danger, that because of the use of the area by youngsters and considering their propensities, the injury to the infant plaintiff was foreseeable, and that defendant was liable.
The order of the Appellate Division should be reversed and a new trial granted, with costs.
I agree with the Appellate Division that the trial court properly dismissed the complaint. When, as in the present case, the alleged negligence involves a failure to correct a dangerous situation, a municipality is not liable unless it received "notice and knowledge" within a reasonable time in which "to repair or guard against" the danger. (Cohen v City of New York, 204 N.Y. 424, 427; accord Breil v City of Buffalo, 144 N.Y. 163.) Although a municipality has a duty to maintain its parks and playgrounds in a reasonably safe condition, we have never extended that duty to hazards about which the municipality had no prior notice. The cases cited by the majority do not support a contrary view. In Nicholson v Board of Educ. ( 36 N.Y.2d 798), the defendant received actual notice when it was specifically forewarned about the dangerous situation. Both Caldwell v Village of Is. Park ( 304 N.Y. 268, 275) and Magid v City of New York ( 234 App. Div. 38, affd 259 N.Y. 618) involved municipalities who had at least received constructive notice. However, my reading of the present record does not support a similar finding.
Without doubt, the defendant Housing Authority never received actual notice about the allegedly dangerous dog. The plaintiff offered no proof that, prior to the accident, anyone had complained of the dog's presence in the playground area. Indeed, the manager of the adjoining apartment complex testified that he learned about the dog only after the accident occurred. Nor was the hazard so blatant and notorious that the authority can be presumed to have received constructive notice of a dangerous situation. Dealing with the issue of what constitutes constructive notice, Caldwell v Village of Is. Park ( 304 N.Y. 268, supra) is misinterpreted by the majority. In Caldwell, the plaintiff suffered an eye injury when a third party illegally exploded fireworks in a public park. The court held that when "it is or should be apparent or it otherwise comes to the attention of a municipality that its park is being used by visitors as a site for criminal and patently dangerous activities and that such use is likely to be continued * * * the municipality may not ignore the foreseeable dangers, continue to extend an invitation to the public to use the area and not be held accountable for resultant injuries." (304 N.Y., at p 275 [emphasis added].) The Caldwell decision specifically stated that the injury resulted not "from a danger inherent in the ordinary play of children", but from a hazard so great that the Legislature made such unsupervised discharge of fireworks a crime. (304 N.Y., at p 275.) Because the use of fireworks was so inherently dangerous, constructive knowledge of that use also established constructive knowledge of a dangerous situation.
In the present case, however, the mere presence of a dog in the playground is neither criminal nor patently dangerous. The alleged incident occurred in a public playground in which any pedestrian could freely bring a domesticated animal. Unlike the situation in Caldwell, where fireworks exploded over a course of several hours, the dog came into the playground for at most a few moments each day. The dog was always accompanied by his master. There is no evidence that, prior to the accident, the dog ever bit anyone or caused any physical injury. Even if one could infer a hazard from the fact that the dog allegedly chased children on several occasions, the plaintiff failed to establish that the authority had any notice of such occurrences. The undisputed testimony of both the victim and a companion was that over a four-month period, the dog chased them on only five or six occasions. In my opinion, notice should not be imputed from so sporadic and infrequent an occurrence. Indeed, any periodic observer would more likely have inferred that the dog presented no hazard, since on the vast majority of occasions master and dog walked peacefully without disturbing the activity of children at play.
Nor should constructive notice arise from the fact that the dog's master, George Arroya, was an employee at a nearby Housing Authority project. As a worker on the maintenance staff, Arroya did not hold any supervisory responsibilities and was not a representative of the authority. He was not on duty when he walked the dog, and his employment responsibilities did not involve the public playground where the accident occurred.
Today's decision comes close to transforming the authority and every municipality into an insurer for injuries caused by the many domesticated animals who habitually roam public areas. I cannot accept this extension of liability to dangers which the authority has no real opportunity to prevent.
Therefore, I conclude, as the Appellate Division did, that "[u]nder the circumstances herein, having no prior notice, the defendant cannot be held responsible for the infant plaintiff's injuries". ( 51 A.D.2d 1036, 1037.)
Chief Judge BREITEL and Judges GABRIELLI, JONES, WACHTLER and FUCHSBERG concur with Judge COOKE; Judge JASEN dissents and votes to affirm in a separate opinion.
Order reversed, etc.