New York Law Review

Tag: premises liability

  • Roark v. Hunting, 24 N.Y.2d 470 (1969): Landlord Liability for Icy Sidewalks

    Roark v. Hunting, 24 N.Y.2d 470 (1969)

    A landlord is generally not liable for injuries sustained on a public sidewalk abutting their property due to snow or ice, unless the landlord’s affirmative act created the hazardous condition.

    Summary

    Robert Roark sued landlords Edward and Peter Hunting for injuries sustained after slipping on ice on a sidewalk abutting their property. Roark alleged the ice formed due to water dripping from a sign attached to the building and from the building’s disrepair. The court held that the landlords were not liable because the sign was erected and controlled by the tenant, and the landlords’ minor repairs to the sidewalk were not shown to have caused or contributed to the icy condition. The court emphasized that the municipality, not the landlord, is primarily responsible for sidewalk maintenance.

    Facts

    Robert Roark, 19, fell and broke his ankle on an icy patch on a sidewalk in front of a building owned by the Hunting brothers and leased to Frederick Grober. The ice allegedly resulted from water flowing from the building’s gutter, pipes, and a sign extending over the sidewalk. The sidewalk was also allegedly broken and in disrepair, which supposedly exacerbated the water accumulation. The tenant, Grober, had erected the sign before the Huntings bought the building and testified to generally maintaining the sidewalk.

    Procedural History

    Robert Roark and his mother sued the Huntings and Grober. A jury found in favor of Roark against the Huntings for $19,000 and in favor of his mother for $4,000, while finding no cause of action against Grober. The Appellate Division affirmed the judgment against the Huntings but reduced the mother’s award to $1,500. The Huntings appealed to the New York Court of Appeals.

    Issue(s)

    Whether a landlord is liable for injuries sustained by a pedestrian who slipped on ice on a public sidewalk abutting the landlord’s property, when the ice allegedly formed due to water dripping from a tenant’s sign and the disrepair of the sidewalk.

    Holding

    No, because the tenant, not the landlord, controlled the sign, and the landlord’s actions did not create or exacerbate the icy condition. The primary duty to maintain the sidewalk rested with the municipality.

    Court’s Reasoning

    The court reviewed the basic rules in snow and ice cases, stating, “As a general rule it is only the municipality which may be held liable for the negligent failure to remove snow and ice from a public sidewalk…unless a charter, statute or an ordinance clearly imposes liability upon the owner.” The court noted no such provision applied here. The court distinguished between artificial and natural means of water accumulation, explaining that liability may exist if the owner uses artificial means to transfer snow and ice from the premises to the sidewalk. In this case, the sign was erected by the tenant, not the landlord, and there was no evidence that the landlords negligently erected or maintained the sign or the building’s exterior that supported it. The court cited Zolessi v. Bruce-Brown, stating “The duty to keep a building or part of it in repair is coextensive with the control retained by the landlord.” The court rejected the argument that the landlord’s minor repairs to the sidewalk created liability, finding no evidence that these repairs caused the accident or were negligently performed in the area where the plaintiff fell. The court concluded that holding the landlord liable would be “most unfair” when the municipality holds the primary responsibility for maintaining the sidewalk and the landlord’s actions did not cause the accident.

  • Gallagher v. St. Raymond’s Roman Catholic Church, 21 N.Y.2d 554 (1968): Duty to Illuminate Exterior of Public Buildings

    Gallagher v. St. Raymond’s Roman Catholic Church, 21 N.Y.2d 554 (1968)

    The owner of a public building has a duty to provide a reasonably safe means of ingress and egress, which includes providing adequate lighting to the exterior of the building when it is open to the public.

    Summary

    Gertrude Gallagher, attending a meeting at St. Raymond’s Roman Catholic Church, fell and was injured when exiting the building because the exterior lights had been turned off. Gallagher sued the church for negligence. The New York Court of Appeals reversed the Appellate Division’s decision, holding that the church had a duty to provide adequate lighting for a safe exit. The court reasoned that the common-law rule exempting building owners from providing exterior lighting was outdated and inconsistent with modern safety standards and legislative trends. The court emphasized the importance of adapting the common law to reflect current societal norms and expectations regarding safety in public spaces.

    Facts

    Gertrude Gallagher attended a Senior Sodality meeting at St. Raymond’s Roman Catholic Church. After the meeting, as she exited the building around 11:15 p.m., the exterior lights had been turned off, leaving the area dark. Gallagher, remembering a handrail, reached for it but misstepped because the landing didn’t extend to the rail, causing her to fall and sustain injuries.

    Procedural History

    Gallagher sued St. Raymond’s Roman Catholic Church for negligence and the jury returned a verdict in favor of Gallagher. The Appellate Division reversed, holding that the church had no duty to illuminate the exterior stairway in the absence of defective conditions or peculiar dangers. The case was then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the owner of a public building has a duty to provide adequate lighting to the exterior of the building when it is open to the public, ensuring a safe means of ingress and egress.

    Holding

    Yes, because the traditional common-law rule exempting building owners from providing exterior lighting is anachronistic and does not reflect modern safety standards or societal expectations. The public is entitled to a safe and reasonable means to enter and exit an open public building, which includes adequate lighting.

    Court’s Reasoning

    The Court of Appeals reasoned that the common-law rule originated in an era when gas and electric lighting were not widely available. The court noted that legislative actions, such as amendments to the Multiple Dwelling Law, demonstrate a trend toward requiring exterior lighting for public safety. The court stated, “We can conceive of no reason why at the present time the owner of a public building should not be required to light the exterior of his building at those times when it is open to the public.”

    The court emphasized that the common law must adapt to changing societal conditions and expectations. Quoting the Restatement (Second) of Torts § 343, comment e, the court highlighted the need for a lit path or stairway to the street for safe entry and exit. The court found the burden on the owner to provide lighting (in terms of cost and maintenance) slight compared to the potential for injuries. The court concluded, “The lights on the school building should not have been turned off until it was ascertained that the members of the Sodality, including Mrs. Gallagher, had left the premises.” The court explicitly stated, “The common law of this State is not an anachronism, but is a living law which responds to the surging reality of changed conditions.”

  • Patterson v. Proctor Paint & Varnish Co., 21 N.Y.2d 447 (1968): Liability for Injuries to Trespassing Children Caused by Volatile Substances

    Patterson v. Proctor Paint & Varnish Co., 21 N.Y.2d 447 (1968)

    A landowner may be liable for injuries to children trespassing on their property if the landowner knows children frequent the property, the property is easily accessible, and the landowner leaves highly volatile substances accessible to the children.

    Summary

    A 12-year-old boy, Matthew Patterson, was severely burned when he ignited paint solvent he found in an open yard adjacent to the Proctor Paint & Varnish Co. plant. The yard, unfenced and accessible to children, contained cans collecting dripping paint solvent. Patterson, after spilling some of the solvent on his clothes, lit a fire and poured the solvent on it, causing a flare-up that ignited his clothing. The trial court dismissed the complaint, which was affirmed by the Appellate Division. The New York Court of Appeals reversed, holding that the company could be liable given the accessibility of the property, the known presence of children, and the presence of a volatile substance. The court reasoned that the rigid application of the trespass doctrine has diminished and that the volatility of the substance presented a question of fact for the jury.

    Facts

    Proctor Paint & Varnish Co. operated a paint and varnish manufacturing plant in a residential area of Yonkers. Adjoining the plant was an open, unfenced yard. Fill pipes on the plant’s outer wall dripped paint solvent into cans placed by the company. The solvent, resembling water, was a flammable liquid with a flash point of 103 degrees Fahrenheit, making it both combustible and explosive. The company knew that children frequently played in the yard.

    On October 29, 1961, Matthew Patterson, 12, and his younger brother entered the yard by climbing over a wall. Matthew picked up a pail of solvent, spilled some on his clothes, lit a fire, and poured the solvent on the fire, resulting in severe burns.

    Procedural History

    The trial court dismissed the complaint at the close of the plaintiffs’ case, finding it legally insufficient. The Appellate Division affirmed the trial court’s decision. Two justices dissented in the Appellate Division, believing the plaintiffs had established a prima facie case. The New York Court of Appeals granted leave to appeal and reviewed the dismissal.

    Issue(s)

    Whether a landowner is liable for injuries sustained by a child trespassing on their property when the child is injured by a volatile substance left accessible on the property, where the landowner knew children frequented the property.

    Holding

    Yes, because the landowner left the property open and accessible to children, knew that children used it for play, and left highly volatile substances accessible to them; a case prima facie is made out if a child is thus injured.

    Court’s Reasoning

    The Court of Appeals recognized that the rigid application of the trespass doctrine to children injured by dangerous conditions on land had diminished over time. The court distinguished earlier cases that had denied recovery based solely on the child’s trespasser status, citing more recent decisions that had found liability despite the child’s lack of legal right to be on the property. The court emphasized the added element of dangerous volatile substances, noting that the child’s active intervention in igniting the substance did not preclude recovery. Citing Travell v. Bannerman, 174 N.Y. 47 (1903), Kingsland v. Erie County Agric. Soc., 298 N.Y. 409 (1949), and Carradine v. City of New York, 13 N.Y.2d 291 (1963), the court noted that liability had been found in similar cases involving dangerous substances even when the children were trespassing. The court explicitly stated, “The main body of decisions in this court instructs us that the rule today is that if the owner of land leaves it open and accessible to children; if he knows that children use it for play; and if he leaves accessible to them highly volatile substances, a case prima facie is made out if a child is thus injured.” The court found that the volatility of the paint solvent was a question of fact for the jury. The court reversed the dismissal and ordered a new trial.

  • Corcoran v. Banner Super Market, Inc., 21 N.Y.2d 425 (1968): Applying Res Ipsa Loquitur to Jointly Controlled Instrumentalities

    Corcoran v. Banner Super Market, Inc., 21 N.Y.2d 425 (1968)

    The doctrine of res ipsa loquitur can be applied against multiple defendants who share control and responsibility over an instrumentality when an accident indicates a failure of duty by each, even if neither has sole control.

    Summary

    Olga Corcoran was injured by a falling board between two adjacent stores. She sued the owner of one store (Kane’s estate) and the lessee (Banner Super Market). The court initially applied res ipsa loquitur against the owner but not the lessee. An appellate court reversed, finding res ipsa loquitur inapplicable due to joint control with a non-defendant. After retrial, the complaint was dismissed against both defendants. The New York Court of Appeals modified the appellate decision, holding that res ipsa loquitur could apply against the owner because of their shared duty to maintain the area, but not against the lessee who had no such duty.

    Facts

    Olga Corcoran was walking past two adjacent stores on Flatbush Avenue when she was struck by a falling board located in the space between the buildings, which caused her injuries. One store, 2052 Flatbush Avenue, was a fruit store owned by a non-party. The other, 2054 Flatbush Avenue, was owned by Margaret Kane (her executors are defendants) and leased to Banner Super Market, Inc. The board that fell was situated such that approximately one inch rested on the Kane property and four and a half inches on the fruit store property.

    Procedural History

    The trial court initially found for the plaintiff against Kane’s estate, applying res ipsa loquitur, but not against Banner. The Appellate Division reversed the judgment against Kane’s estate, arguing res ipsa loquitur was inapplicable due to joint control with the non-defendant fruit store owner, and ordered a new trial. On retrial, the court dismissed the complaint against both defendants, finding no basis for res ipsa loquitur or actual negligence. The Appellate Division affirmed but granted leave to appeal to the Court of Appeals.

    Issue(s)

    1. Whether the doctrine of res ipsa loquitur applies to the owner of the property where the falling board was partially located, given that an adjacent property owner also shared control over the board.
    2. Whether the doctrine of res ipsa loquitur or evidence of specific negligence applies to the lessee of the property.

    Holding

    1. Yes, because the owner had a duty to inspect the portion of the board on their property, independent of the adjacent owner’s duty, and the accident indicates a failure of that duty.
    2. No, because the lessee had no duty under the lease to maintain or repair the exterior of the building, and the evidence did not establish specific negligence on their part.

    Court’s Reasoning

    The court addressed the elements of res ipsa loquitur: (1) the event ordinarily does not occur absent negligence; (2) the instrumentality is within the defendant’s exclusive control; and (3) the plaintiff did not contribute to the event. While the first and third conditions were met, the second, exclusive control, was the main point of contention. The court reasoned that the purpose of the exclusive control requirement is to establish that the defendant’s negligence was the probable cause of the accident. Quoting Prosser, “[I]t is still necessary to bring it home to the defendant.” The court noted that the requirement has been relaxed in cases such as Zentz v. Coca Cola Bottling Co., where control at the time of the accident is not required if the instrumentality was not mishandled after leaving the defendant’s control.

    The court cited Schroeder v. City & County Sav. Bank where res ipsa loquitur was applied against multiple defendants with shared supervision over a barricade. Similarly, in this case, the board was partially on the owner defendant’s property, creating a duty to inspect, separate from the fruit store owner’s duty. The court stated, “This type of accident permits the inference that each owner failed in his duty, and that if either had fulfilled his duty the accident would not have happened.” Thus, res ipsa loquitur could be applied against the owner. The court distinguished the lessee, Banner Super Market, because the lease did not obligate them to maintain the building’s exterior, and there was no evidence of specific negligence on their part.

  • Mayer v. City of New York, 9 N.Y.2d 294 (1961): Duty of Care Owed to Trespassers and Inherently Dangerous Conditions

    Mayer v. City of New York, 9 N.Y.2d 294 (1961)

    The standard of care owed to trespassers is to refrain from willful, wanton, or intentional acts, or their equivalents; the determination of whether a condition is inherently dangerous is a question of fact for the jury, unless a statute or ordinance dictates otherwise.

    Summary

    This case addresses the duty of care owed to trespassers and whether the storage of flammable liquid constituted an inherently dangerous condition. The Court of Appeals reversed the lower court’s judgment, holding that it was a question of fact for the jury to determine whether the City of New York created or maintained an inherently hazardous situation by storing accessible, highly flammable material in a darkened, vacated recess adjacent to a former public playground area. The court also noted the importance of determining whether the children were, in fact, trespassers.

    Facts

    Infant plaintiffs were injured by a fire in a recess adjacent to a former public playground area owned by the City of New York. The area contained highly flammable material, some of which had spilled on the floor. The trial court charged the jury that the inflammable liquid was inherently dangerous as a matter of law.

    Procedural History

    The trial court rendered a judgment. The Appellate Division affirmed. The Court of Appeals reversed the judgment and ordered a new trial.

    Issue(s)

    1. Whether the trial court erred in charging the jury that the inflammable liquid was inherently dangerous as a matter of law.
    2. Whether the infants were actually trespassers.

    Holding

    1. Yes, because in the absence of a statute or ordinance, it is a question of fact for the jury to determine whether the storage of accessible, highly inflammable material constitutes an inherently hazardous situation.
    2. The court suggested that consideration should be given at the new trial to the question of whether the infants were actually trespassers.

    Court’s Reasoning

    The Court of Appeals reasoned that the proper standard of care owed to trespassers is refraining from willful, wanton, or intentional acts, or their equivalents. The court emphasized that determining whether an inherently dangerous situation existed is a question of fact for the jury, considering all relevant circumstances, including the continued storage of accessible, highly inflammable material, some of which had spilled on the floor, within a darkened vacated recess adjacent to a former public playground area.

    The Court cited Mayer v. Temple Props., stating that the consequences of maintaining an inherently hazardous situation may well have been anticipated. The Court distinguished situations where a statute or ordinance defines a substance as inherently dangerous, making it a question of law. In this case, absent such a provision, the determination belonged to the jury.

    The court also raised the point of whether the infants were actually trespassers, citing Collentine v. City of New York, indicating that their status could impact the duty of care owed to them. The Court reasoned that even if no exception was taken at trial, the issue should be considered during the new trial, as it would determine the level of duty the City owed to the children.

  • Rogers v. Dorchester Associates, 32 N.Y.2d 553 (1973): Landlord’s Non-Delegable Duty and Indemnification

    Rogers v. Dorchester Associates, 32 N.Y.2d 553 (1973)

    A landlord has a non-delegable duty to provide safe ingress and egress for tenants, and this duty precludes indemnification from a contractor when the landlord’s own negligence contributes to the injury.

    Summary

    Plaintiff Rogers was injured while using a scaffold erected by a contractor, El-Mar Painting & Decorating Co., hired by the landlords, Dorchester Associates and Berman. Rogers sued both the contractor and the landlords. The Court of Appeals held that while Rogers was not contributorily negligent as a matter of law, the landlords were not entitled to indemnification from the contractor because the landlord had a nondelegable duty to use reasonable care in providing for a safe means of ingress to a tenant, and their failure to do so constituted negligence barring indemnity as joint tortfeasors.

    Facts

    Dorchester Associates and Berman (landlords) hired El-Mar Painting & Decorating Co. (contractor) to perform work on their property. Rogers (plaintiff) followed instructions from the painters (presumably employees of El-Mar) while mounting a scaffold. Rogers sustained injuries as a result of the incident.

    Procedural History

    Rogers sued both the landlords and the contractor. The trial court found in favor of Rogers against all defendants. The trial court also granted judgment in favor of the landlords on their cross-claim against the contractor, seeking indemnification for any liability they had to Rogers. The Court of Appeals reviewed the case to determine the validity of the judgment against the landlords, specifically concerning the indemnification claim.

    Issue(s)

    1. Whether the plaintiff was contributorily negligent as a matter of law.
    2. Whether the landlords were entitled to indemnification from the contractor for damages awarded to the plaintiff.

    Holding

    1. No, because the plaintiff followed the instructions of the painters in mounting the scaffold.
    2. No, because a landlord has a nondelegable duty to use reasonable care in providing for a safe means of ingress to a tenant, and failure to comply with that duty bars indemnity because the codefendants are joint tort-feasors.

    Court’s Reasoning

    Regarding the plaintiff’s negligence, the court summarily cited precedent (Zurich Gen. Acc. & Liab. Ins. Co. v. Childs Co., Meyer v. West End Equities, and Hamblet v. Buffalo Lib. Garage Co.) to support its conclusion that the plaintiff was not negligent as a matter of law because they followed the instructions of the painters.

    Regarding the landlords’ claim for indemnification, the court emphasized the non-delegable duty of a landlord to provide safe access to tenants, citing Harrington v. 615 West Corp. The court further reasoned that the landlord employing the contractor must ensure precautions are taken to protect tenants, citing Sciolaro v. Asch and Dollard v. Roberts. The court stated, “To this duty is added the responsibility that the landlord, who employs the contractor to do work in a place where tenants are in the habit of passing, must see that necessary precautions are taken not to endanger the tenants.” The court reasoned that the landlord’s failure to meet this duty constitutes negligence, barring indemnification because both the landlord and the contractor participated in the wrong that caused the damage, making them joint tortfeasors. Citing Bush Term. Bldgs. Co. v. Luckenbach S. S. Co., the court reiterated that there is no right of indemnity where codefendants participated in the wrong. The dissent argued that the evidence was insufficient to establish any negligence by the landlords.

  • Gasperino v. Larsen Ford, Inc., 307 N.Y.S.2d 111 (1970): Duty to Provide Safe Workplace and Foreseeable Use

    Gasparino v. Larsen Ford, Inc., 42 A.D.2d 1047, 348 N.Y.S.2d 235 (1973)

    An employer has a duty to provide a safe workplace, which extends to reasonably foreseeable uses of the premises, even if those uses are not explicitly directed by the employer.

    Summary

    Gasparino, a window washer, sustained injuries when he fell from a window while cleaning it at Larsen Ford. He sued Larsen Ford, alleging negligence in failing to provide a safe workplace. The key issue was whether Larsen Ford furnished the window seat as a place to work, even though it wasn’t explicitly directed. The jury found in favor of Gasperino, but the appellate division reversed. The Court of Appeals reversed the appellate division, holding that the jury could reasonably find that Larsen Ford knew the windows were being cleaned in this manner and had not provided any alternative safe method, thus establishing a breach of duty. The dissent argued that the jury’s verdict should stand because Ford had a duty to provide a safe workplace, and the evidence supported the finding that the window seat was the only available place to perform the work, with Ford’s knowledge.

    Facts

    Plaintiff Gasperino, a window washer, was injured while cleaning windows at Larsen Ford. The injury occurred when he fell from a window. The evidence suggested that the window seat was the only available place to perform the cleaning work.
    There was evidence suggesting that Larsen Ford employees knew that the windows were being cleaned in this manner.
    Larsen Ford did not provide any alternative or safe method for cleaning the windows.

    Procedural History

    The trial court entered judgment in favor of the plaintiff, Gasperino. The Appellate Division reversed the trial court’s judgment. The New York Court of Appeals reversed the Appellate Division’s decision, reinstating the trial court’s verdict in favor of Gasperino.

    Issue(s)

    Whether Larsen Ford breached its duty to provide a safe workplace by failing to provide a safe means for cleaning the windows, given that its employees knew how the cleaning was being performed.

    Holding

    Yes, because the jury could reasonably find that Larsen Ford knew the windows were being cleaned in the manner they were, and that Larsen Ford had not provided any alternative safe means, thus establishing a breach of duty.

    Court’s Reasoning

    The Court reasoned that an employer has an affirmative duty to provide employees with a safe place to work. The jury was justified in finding that the seat on the ventilating window was the only place from which this work could be done. The court emphasized that the critical question was whether Ford “furnished” this location as the place to do the work. The jury’s positive answer was well-founded on the proof that responsible employees of Ford furnished no other place or way to do the work and knew that the windows were being washed in this manner. The court distinguished this case from Borshowsky v. Altman & Co., where the complaint was dismissed because the plaintiff had been told to keep off the glass marquee, there were other safe ways to clean, and the defendant never knew the marquee was being used for that purpose. The dissent argued that the evidence supported the jury’s finding that Ford provided no other safe method and was aware of the existing practice.

  • Mayer v. Temple Properties, 307 N.Y. 559 (1954): Liability for Dangerous Conditions to Child Trespassers

    307 N.Y. 559 (1954)

    A landowner can be liable for injuries to even a trespasser, including a child, if the injuries result from an affirmatively created, dangerous condition or trap on the property, especially when the landowner knows children frequent the area.

    Summary

    Frank Mayer, a 12-year-old boy, died after falling into an unguarded opening on a platform behind a building owned by Temple Properties and used in common with another defendant. The platform was accessible to children, who often played there, by crawling under a gate. The opening, normally covered by steel doors, was instead covered with flimsy wood that gave way when Mayer stepped on it. The New York Court of Appeals affirmed a judgment for the plaintiff, holding that the defendants created a dangerous trap and were liable for the boy’s death, despite his status as a trespasser. The court emphasized the affirmative act of creating a hazardous condition, the foreseeability of children’s presence, and the deceptive appearance of safety.

    Facts

    The platform, located behind defendants’ building in a congested neighborhood with many children, was accessible via a ladder and by crawling under a gate. The platform had a 4-foot-square opening used for raising and lowering ash and rubbish cans, normally covered by two hinged steel doors. Children frequently crawled under the gate and played on the platform, a practice known to the defendants’ agents, who occasionally chased them away. On the day of the accident, one steel door was open, and the opening was covered by “jerry-built” wood, described as being like orange crate or shipping crate material. Mayer and a friend crawled under the gate and onto the platform. When Mayer stepped on the wood covering the opening, it gave way, and he fell 55 feet to his death.

    Procedural History

    The plaintiff, Mayer’s father, sued the defendants for negligence. The case was tried before a Referee without a jury, who found in favor of the plaintiff. The Appellate Division affirmed the judgment. The defendants appealed to the New York Court of Appeals.

    Issue(s)

    Whether the defendants were liable for the death of the decedent, a trespasser, where the death resulted from a dangerous condition affirmatively created by the defendants on their property and where the defendants knew children frequented the area.

    Holding

    Yes, because the defendants affirmatively created a dangerous trap by covering the opening with flimsy wood, knew children frequented the area, and the insecure covering gave a deceptive appearance of safety.

    Court’s Reasoning

    The Court of Appeals emphasized that while New York generally follows the rule that landowners owe trespassers only a duty to refrain from affirmative acts of negligence or intentional harm, this case fell within an exception. The court distinguished this case from those involving mere failure to repair or maintain property. Here, the defendants affirmatively created a dangerous condition by knowingly placing a frail wooden covering over a deep hole. The court noted, “Here we have abundant proof of affirmative action by defendants, who ‘changed conditions’ and ‘created new perils there’ by providing an insecure and deceptive covering over the platform opening.” The court also stressed that the defendants were aware that children frequently played on the platform, making the incident foreseeable. The court equated the situation to an “explosive bomb, highly inflammable material, a spring gun, or kindred devices,” stating that creating such a hazardous situation amounted to a “reckless disregard of the safety of human life.” The court distinguished Carbone v. Mackchil Realty Corp., 296 N.Y. 154 (1946), where the dangerous condition was a pre-existing condition far removed from public travel, and there was no affirmative act by the defendant. The Court held that the question of the decedent’s contributory negligence was a question of fact, and it was bound by the lower courts’ findings on that issue. Judges Dye and Van Voorhis dissented, arguing the defendants did not violate a duty owed to a trespasser, citing Carbone.