NEGLIGENCE/BREACH OF DUTY

Merrill v. The State of New York Court of Claims

110 Misc.2d 260, 442 N.Y.S.2d 352 (1981)

FACTS: Plaintiff Theophane Merrill and his wife Virginia, both deaf, attended the New York State Fair in Syracuse, New York, with their two children on September 3, 1977. They drove to the fair from their home in Rochester. When they reached the fairgrounds, at about 1:30 p.m., the parking lots were full. At the direction of a state trooper they parked their car near the fairgrounds on a grassy median of Interstate Route 690. The median, which had been used for parking for the state fair in prior years, was in the middle of three lanes of eastbound traffic and two lanes of westbound traffic. The speed limit on Route 690 was 55 m.p.h.

To reach the fairgrounds from the median pedestrians had to cross the three lanes of eastbound traffic.

The Merrills reached the fairgrounds safely and remained at the fair until midnight. After leaving the fairgrounds they crossed the three lanes of traffic to the median but then had difficulty finding their car. The state trooper who had directed them earlier was not present. The median had no street lights. The Merrills, trying to find their car, walked back and forth single file along the median, on the yellow line that identified the edge of the lane of highway. While their backs faced oncoming traffic a car hit Theophane Merrill, cutting off part of his right arm. At the moment he was hit, Merrill was slightly to the right of the yellow line in a lane of traveled highway.

No signs along the median warned drivers of pedestrian traffic.

Merrill sued the State of New York for negligence, seeking compensation for his injuries.

ISSUE: Did the State of New York breach a duty of care by directing fairgoers to park in the median of an interstate highway?

DECISION: Yes, judgment for Merrill.

REASONING: Directing cars to park on a state highway created a foreseeable risk of injury to the fairgoers. The state, having created such a risk, had a duty to protect against the foreseeable injury. It failed to meet this responsibility. Fairgoers had to cross three lanes of highway traffic, the highway was not lighted, no trooper was present to direct traffic, and no warning signs for drivers were installed. The state's conduct thus constituted negligence. The state was therefore liable to Merrill who was injured by the negligence.

The court acknowledged that Merrill was acting negligently at the time he was hit. By walking on the portion of the highway used by cars with his back to traffic Merrill was exposing himself to the foreseeable risk of injury from an oncoming car.

Applying the rule of comparative negligence, 10% of the liability for the accident was allocated to him.

NOTE: The operator of the car that hit Merrill was also found to be negligent. The driver paid a portion of the damages awarded to Merrill pursuant to an out-of-court settlement.

* * * QUESTIONS * * *

(See back of text for answers)

I) What actions might the state have taken to avoid liability in this case?

Would the outcome have been different if Merrill was not deaf? Why or why not?

Case No. 28

NEGLIGENCE/ABSENCE OF A DUTY

Kosok v. YounK Men's Christian Association Appellate Division, First Department

24 A.D.2d 113, 264 N.Y.S.2d 123 (1965)

FACTS: Plaintiff Karl Kosok (Kosok) attended a summer camp sponsored by the defendant, Y.M.C.A. in Orange County, New York. The camp schedule included a rest period immediately following lunch. During this period the older campers were required to stay close to their cabins and engage only in quiet activity. For the younger campers bed rest was required.

One day during the rest period Kosok, then 12 years old, was invited into a cabin of 15-year-olds. Inside, the boys had rigged a galvanized pail to the end of fishing line attached to a fishing rod and raised the pail above the entrance way to the cabin by reeling in the line. When Kosok entered the cabin the 15-year-olds let out the line causing the pail to drop and hit Kosok, resulting in injuries. Kosok sued the Y.M.C.A. camp claiming it was negligent by breaching a duty to supervise the activities of the boys during the rest period.

The total number of campers in attendance at the camp was 200; the number of counselors was 33. Camp regulations did not require counselors of the 15- year-old boys to remain in the cabin during rest periods. Such counselors frequently were absent from the cabins during rest period but usually were on the cabin porch or nearby. At the time of the pail incident no counselor was present in the cabin.

ISSUE: Did the camp owe a duty to the campers to have a counselor in each cabin throughout the entire rest period?

DECISION: No, judgment for the camp.

REASONING: A duty to supervise arises when the camp is put on notice of potentially dangerous activity. Had noise or some other telltale hint emanated from the cabin a duty to supervise the events would result. No such noise or other warning event occurred in this case. Also, constant supervision at a summer camp is neither possible nor desirable. A certain amount of rough and/or boisterous play is common at summer camps and should not be suppressed unless it becomes dangerous.

* * * QUESTIONS * * *

(See back of text for answers)

Assume the campers in the cabin with the rigged pail did the same stunt during the rest period on the day immediately after Kosok was injured and that a second camper was injured as a result. Assume further that no counselor was on duty in the cabin at

the time the second camper was injured. If the second injured camper sued the camp for negligence, might the decision of the court be different? Why or why not?

Assume the following additional facts: the camp was located 25 miles from a maximum-security prison; an inmate in the prison escaped one summer morning; the prison officials called the camp director to inform her of the escape; the escaped inmate entered an unattended cabin at the camp during rest period on the day following the escape and kidnapped one of the campers. The camper was rescued several days later but had been beaten by the inmate and suffered severe injuries. If the camper sued the camp for his injuries based on negligence, would the camp be liable for the injuries? Why or why not?