Conklin v. Fordham Street Boat Club, Inc.

Memorandum by the court. Judgment reversed on the law and on the facts and the complaint dismissed, with $50 costs to defendant. The infant plaintiff was injured when she tripped and fell over a rock 12 to 14 inches in diameter and 8 inches high. Her parents were members of defendant club and there maintained a boat. Adjacent to the clubhouse there was a graded parking lot approximately 100 by 150 feet. At the time of the accident defendant was installing a track for the purpose of transporting boats from the water edge to the locker room. Truckloads of fill had been dumped in this area and contained therein were sizable rocks and stones. On a Sunday afternoon in July the infant, then nine years of age, while traversing this area fell over one of the rocks. The measure of defendant’s duty was reasonable care (Greene v. Sibley, Lindsay & Curr Co., 257 N. Y. 190). This is not a case of injury to one within the confines of a maintained parking lot (cf. Jackson v. Associated Dry Goods Corp., 13 N Y 2d 112). Coneededly, the area where the accident occurred was being filled for construction of the railroad track. The infant plaintiff undertook to walk therein and in a daylight hour fell over a large rock that was plainly visible. The finding implicit in the verdict of the jury that defendant should have anticipated such an occurrence would impose a duty much greater than the law requires of a reasonably prudent person. (Cf. Garthe v. Ruppert, 264 N. Y. 290, 295; Powers v. Montgomery Ward & Co., 251 App. Div. 120, affd. 276 N. Y. 600; Oldfield v. Neisner Bros., 285 App. Div. 1110.)