
    Joseph Scurti, as Administrator of the Estate of John J. Scurti, Deceased, Appellant, v City of New York et al., Respondents.
    Argued April 26, 1976;
    decided June 17, 1976
    
      
      Robert J. Bohner for appellant.
    I. Defendant City of New York had a duty to exercise reasonable care towards the infant decedent, and failed to do so. (Caldwell v Village of Is. Park, 304 NY 268; Le Roux v State of New York, 307 NY 397; Collentine v City of New York, 279 NY 119; Runkel v City of New York, 282 App Div 173; Lopez v City of New York, 4 AD2d 48, 4 NY2d 738; Malvaso v State of New York, 15 Misc 2d 585, 10 AD2d 663; Burkart v State of New York, 28 AD2d 1167.) II. The Public Service Commission’s intraoffice memorandum, plaintiffs Exhibit 14 for identification, was erroneously excluded from evidence. (Johnson v Lutz, 253 NY 124; Yeargans v Yeargans, 24 AD2d 280; Tyson v Bittner, 3 AD2d 861; Heimer v Stento, 270 App Div 665.) III. The traditional feudalistic distinctions between invitees, licensees and trespassers should be abolished and a commonsense rule of reasonable care modified according to the totality of circumstances should be adopted. (Martinez v Kaufman-Kane Realty Co., 34 NY2d 819; Woods v Lancet, 303 NY 349.) IV. Assuming that the infant decedent was a trespasser, defendant railroad companies still owed him a duty not to maintain an inherently dangerous condition without exercising a reasonable degree of care commensurate with the foreseeable risk of an injury to others. (Carradine v City of New York, 16 AD2d 928, 13 NY2d 291; Croissant v Long Is. R. R. Co., 36 AD2d 612; Beauchamp v New York City Housing Auth., 12 NY2d 400; Runkel v City of New York, 282 App Div 173; Mayer v Temple Props., 307 NY 559; Patterson v Proctor Paint & Varnish Co., 21 NY2d 447; Martinez v Kaufman-Kane Realty Co., 34 NY2d 819; French v Central N. Y. Power Corp., 275 App Div 238; Kingsland v Erie County Agric. Soc., 298 NY 409.) V. Defendants, New Haven and Long Island Railroads, were using the land by permission and invitation of the owner, defendant New York Connecting, without a lease, and did not, therefore, share the owner’s immunity towards trespassers. (Ferrari v New York Cent. R. R. Co., 224 App Div 182, 250 NY 527; Wittleder v Citizens’ Elec. Illuminating Co., 47 App Div 410, 50 App Div 478; Cavanaugh v Peoples Gas & Elec. Co., 234 App Div 402; Bain v New York Cent. R. R., 342 F2d 801; Constantino v Watson Contr. Co., 219 NY 443.)
    
      W. Bernard Richland, Corporation Counsel (Ellen Kramer Sawyer and L. Kevin Sheridan of counsel), for City of New York, respondent.
    The complaint was properly dismissed since no recovery can be had for injuries sustained by one who, like the infant decedent here, knowingly trespasses on a railroad right of way, climbs a high embankment, and in violation of statute, runs along the railroad tracks for a distance of about 10-boxcar lengths and then climbs 15 feet to the top of one of the boxcars and walks along approximately its entire length. (Lederman v New York City Tr. Auth., 36 Misc 2d 571, 21 AD2d 751, 14 NY2d 488; Keller v Erie R. R. Co., 183 NY 67; Nilsen v Long Is. R. R. Co., 268 App Div 782, 295 NY 721; Van 
      
      Houten v Long Is. R. R. Co., 279 App Div 1099, 304 NY 990; Van Houten v New York, New Haven & Hartford R. R. Co., 286 App Div 875, 2 NY2d 739; Lo Casto v Long Is. R. R. Co., 7 AD2d 758, 6 NY2d 470; Ziehm v Chesapeake & Ohio Ry. Co., 19 NY2d 785; Panettieri v City of New York, 271 App Div 881; Pierce v City of New York, 40 AD2d 832, 34 NY2d 762; La Camera v City of New York, 279 App Div 1018.)
    
      Robert M. Peet for New York Connecting Railroad Co. and others, respondents.
    I. The trial court and the Appellate Division have correctly found that there was no proof that any duty owed the decedent trespasser was violated. (Wolf v Smith, 32 NY2d 724; Clancy v Erie R. R. Co., 13 AD2d 762; Croissant v Long Is. R. R. Co., 36 AD2d 612, 29 NY2d 481; Kline v Long Is. R. R. Co., 13 NY2d 773; Gleason v Central New England Ry. Co., 261 NY 333; Keller v Erie R. R. Co., 183 NY 67; Walker v Bachman, 268 NY 294; Avlon v Greencha Holding Corp., 239 F2d 616; Merriman v Baker, 34 NY2d 330; Bain v New York Cent. R. R., 342 F2d 801.) II. Decedent’s actions bar his recovery. (Stoffel v New York, New Haven & Hartford R. R. Co., 205 F2d 413; Martin v Herzog, 228 NY 164.) III. Exclusion of the intraoffice memorandum was proper and harmless. (Johnson v Lutz, 253 NY 124.)
    
      William J. Pallas, George M. Onken and Laurence H. Rubin for Long Island Rail Road Company and another, respondents.
    I. Plaintif has failed to establish a cause of action against defendants, Long Island Rail Road Company and Metropolitan Transportation Authority. II. The infant decedent was both a common-law and statutory trespasser to whom defendant railroad owed no duty other than to refrain from causing him willful injury. (Merriman v Baker, 34 NY2d 330; Keller v Erie R. R. Co., 183 NY 67; Gleason v Central New England Ry. Co., 261 NY 333; Wolf v Smith, 39 AD2d 926, 32 NY2d 724; Scholl v New York Cent. R. R. Co., 2 AD2d 989, 3 NY2d 989; Keeler v Long Is. R. R. Co., 273 App Div 896, 299 NY 621; Nilsen v Long Is. R. R. Co., 268 App Div 782, 295 NY 721; Richards v Long Is. R. R. Co., 258 App Div 918; Zambardi v South Brooklyn Ry. Co., 281 NY 516; Morse v Buffalo Tank Corp., 280 NY 110.) III. There existed no inherently dangerous condition or trap on railroad property. (Lederman v New York City Tr. Auth., 36 Misc 2d 571; Runkel v City of New York, 282 App Div 173; Carradine v City of New York, 16 AD2d 928; Brzostowski v Coca-Cola Bottling Co., 16 AD2d 196.) IV. The New York courts have not chosen to abandon the common-law distinction between invitee, licensee and trespasser. (Merriman v Baker, 34 NY2d 330.) V. The Public Service Commission, by express statutory prohibition, lacks jurisdiction over defendants, Long Island Rail Road Company and Metropolitan Transportation Authority. (Long Is. R. R. Co. v Public Serv. Comm. of State of N. Y., 30 AD2d 409, 23 NY2d 852.) VI. The infant decedent was guilty of contributory negligence as a matter of law. (Martin v Herzog, 228 NY 164; Gloshinsky v Bergen Milk Transp. Co., 279 NY 54; Thompson v Buffalo Ry. Co., 145 NY 196; Tucker v New York Cent. & Hudson Riv. R. R. Co., 124 NY 308; Wendell v New York Cent. & Hudson Riv. R. R. Co., 91 NY 420; Reynolds v New York Cent. & Hudson Riv. R. R. Co., 58 NY 248; Polk v New York Cent. R. R. Co., 10 AD2d 703, 8 NY2d 1106; Lobsenz v Rubinstein, 258 App Div 164, 283 NY 600; Le Duc v New York Cent. & Hudson Riv. R. R. Co., 92 App Div 107; Beauchamp v New York City Housing Auth., 12 NY2d 400.) VII. The dissenting opinion of the Appellate Division is inapplicable to defendants, Long Island Rail Road and Metropolitan Transportation Authority.
   Wachtler, J.

Today the court has held that the liability of a landowner to one injured upon his property should be governed, not by the ancient and antiquated distinctions between trespassers, licensees, and invitees decisive under common law, but rather by the standard applicable to negligence cases generally, i.e., the "standard of reasonable care under the circumstances whereby foreseeability shall be a measure of liability” (Basso v Miller, 40 NY2d 233, 241). This case involves the further application of that standard and consideration of those factors, conclusive under prior law, which may continue to have some relevance in determining a landowner’s liability for injury to one who concededly entered his property without permission.

On June 26, 1968 John Scurti, a 14-year-old high school student accompanied by another boy, entered a railroad yard through a hole in the fence at the rear of a playground located in Glen Ridge Park in Queens County. He then climbed on the top of a freight car on mainline track No. 5 and was electrocuted when he came in contact with a high-voltage catenary wire used to supply power to the locomotives.

This suit, commenced by Scurti’s father as administrator of his son’s estate and in his individual capacity, seeks damages for wrongful death, pain and suffering and loss of services. At the trial there was proof that the defendant New York Connecting Railroad Co. owns the yard and the tracks; that the defendants Penn Central Co., New York, New Haven and Hartford Railroad Co. and its trustees own the train and operate mainline track No. 5 and two others pursuant to a trackage agreement with Connecting; and that the defendant Metropolitan Transit Authority (MTA) and its subsidiary Long Island Railroad Co. (LIRR) operate diesel engines in the area, which are controlled from a tower located several hundred yards from the scene of the accident.

There was also proof that the fence through which the boys entered the railroad yard is part of Glen Ridge Park which is owned and maintained by the City of New York as a recreational area and playground; that there are several holes in the fence and that on both sides there are well-worn paths leading to these openings which were made and utilized by children in the area. Furthermore it was stipulated that in this particular yard four teenagers were electrocuted or seriously injured by overhead high-tension wires on four separate occasions—August, 1964, July, 1965, April, 1968 and May, 1968—prior to Scurti’s death in June of 1968. It is conceded that Scurti did not have permission to enter the yard or to climb upon the train.

At the end of the plaintiffs case the court dismissed the complaint on the ground that Scurti was a trespasser on the railroad’s property at the time of his death. On this appeal the defendants claim that this determination, affirmed by a divided court at the Appellate Division, was correct. In addition the MTA and the LIRR urge that there was no basis under any standard for holding them liable for the injury. The City of New York, it should be noted, argues that the railroads breached no duty owed to the trespasser, apparently on the theory that the city cannot be held liable for contributing to the injury if the other defendants are immune.

The order of the Appellate Division should be modified. With the elimination of the special immunities conferred on landowners, their liability to persons injured on their property depends on the reasonableness of their conduct under all the facts and circumstances. However even under that standard there is no basis for holding the MTA or the LIRR liable in this case. They did not own or control the yard, the tracks, the train or the high-tension wires in the area. They were simply bystanders who ran diesel—not electric powered—trains in the yard, and their activities had nothing to do with Scurti’s death. The order of the Appellate Division should be affirmed insofar as it dismissed the complaint against the LIRE and the MTA.

As to the other defendants however, there should be a new trial. They owned or operated the instrumentalities which caused or contributed to the boy’s death and the jury could find that under the circumstances, they failed to use reasonable care to avoid a foreseeable injury. And since there must be a new trial it is appropriate to indicate at least in general terms, how this trial should differ from a trial held under prior law, and what factors conclusive under prior law, may continue to have some relevance in determining the liability of a landowner for injury to one who concededly entered the property without permission.

The starting point at common law was the fact that the injury, no matter how foreseeable, had occurred on the defendant’s property. At a time when landowners were a dominant class and ownership of land was considered akin to a sacred right, the fact that the plaintiff was a trespasser was of the utmost importance. This attitude was reflected in the law which, in its practical application, valued the rights and privileges of ownership "over the lives and limbs of trespassers” (2 Harper and James, Torts, p 1438; Hughes, Duties to Trespassers, 68 Yale LJ 633, 656, 657; 18 Harv L Rev 150; cf. Prosser, Torts [2d ed], p 434). Thus the landowner was held to owe no duty to a trespasser other than the obligation to refrain from willfully or wantonly injuring him (Hughes, op. cit., p 635; Johnson v New York Cent. & Hudson Riv. R. R. Co., 173 NY 79, 82). This simply proscribed certain criminal or quasi-criminal acts such as shooting (Magar v Hammond, 183 NY 387) or setting traps (Bird v Holbrook, 4 Bing 628; Walsh v Fitchburg R. R. Co., 145 NY 301; Hughes, op. cit, p 649), and did little more than serve as a reminder that it was not open season on trespassers.

Later, as the general theory of tort liability developed in response to a heightened awareness of the value of human life, new reasons were found to justify the landowner’s immunity. It was said, for instance, that there was little likelihood that one would enter another’s property without permission and thus the trespasser was not foreseeable (2 Harper and James, op. cit., p 1436; Prosser, op. cit., p 433). It was also argued that a landowner should be entitled to develop his property in the most profitable way, and any requirement that he alter the condition of his property or curtail his activities in order to protect intruders would create unreasonable burdens inhibiting enjoyment or profitable use of the land (2 Harper and James, op. cit., p 1437; Smith, Liability of Landowners to Children Entering Without Permission, 11 Harv L Rev 349, 362; Prosser, op. cit., p 434; Walsh v Fitchburg R. R. Co., 145 NY 301, supra; Mendelowitz v Neisner, 258 NY 181). And finally it was urged that one who enters without permission knowing that the property was not prepared for him assumes the risk or is guilty of contributory negligence as a matter of law (2 Harper and James, op. cit., pp 1438-1439; Prosser, op. cit., p 434; Hughes, op. cit., p 687).

All of these hypotheses obviously have some probative value. But the facts in a particular case might show that trespassers were foreseeable or even foreseen; that the injury could have been prevented by a minimal effort on the part of the landowner; and that there was no basis for finding that the trespasser proceeded in the face of a known danger or was guilty of contributory negligence. To say that the hypothetical factors are always present and thus entitled to conclusive effect in all cases is the purest legal fiction, particularly unrealistic in the case of the infant trespasser.

This was a harsh rule with harsh results and over the years the courts created a number of exceptions. Thus for instance, distinctions were drawn between plaintiffs who were trespassers, licensees and invitees (see, e.g., Vaughn v Transit Development Co., 222 NY 79), with trespassers being further subdivided into discovered and undiscovered trespassers (Ansteth v Buffalo Ry. Co., 145 NY 210; cf. Lo Casto v Long Is. R. R. Co., 6 NY2d 470). Defendants were divided into owners and non-owners (Constantino v Watson Contr. Co., 219 NY 443; Ferrari v New York Cent. R. R. Co., 250 NY 527; Cavanaugh v Peoples Gas & Elec. Co., 260 NY 547; Ehret v Village of Scarsdale, 269 NY 198); the subspecies being nonowners using the premises for their own convenience (Wittleder v Citizens’ Elec. Illuminating Co., 50 App Div 478) and nonowners acting on the owner’s behalf (Ireland v Complete Mach. & Equip. Co., 174 Misc 91; Gold v Rosenblatt, 1 AD2d 894).

There was a basic distinction drawn between injuries caused by active negligence, i.e., dangerous activities (Barry v New York Cent. & Hudson Riv. R. R. Co., 92 NY 289; Byrne v New York Cent. & Hudson Riv. R. R. Co., 104 NY 362) and passive negligence, i.e., dangerous conditions (Nicholson v Erie Ry. Co., 41 NY 525; Sutton v New York Cent. & Hudson Riv. R. R. Co., 66 NY 243; Larmore v Crown Point Iron Co., 101 NY 391; Walsh v Fitchburg R. R. Co., 145 NY 301, supra; Mendelowitz v Neisner, 258 NY 181, supra; Carbone v Mackchil Realty Corp., 296 NY 154). The variations included mere defects (Cusick v Adams, 115 NY 55; Mendelowitz v Neisner, supra; Garthe v Ruppert, 264 NY 290) and inherently dangerous conditions (Kingsland v Erie County Agric. Soc., 298 NY 409; Mayer v Temple Props., 307 NY 559), dangerous conditions obvious to the owner and those not obvious to the owner (Larmore v Crown Point Iron Co., supra; Mendelowitz v Neisner, supra), dangerous attractions on private premises (Walsh v Fitchburg R. R. Co., supra) and dangerous attractions on the public highway (Tierney v New York Dugan Bros., 288 NY 16).

Many of these distinctions were undoubtedly based on considerations which have some probative value in terms of the general theory of tort liability. Thus it has been noted that the distinction between "active” and "passive” negligence was probably based on the notion that it was generally easier and thus more reasonable to expect a landowner to abate an activity than it is to correct a dangerous condition existing on the property (Hughes, Duties to Trespassers, 68 Yale LJ 633, 698). This may well be true in most cases but certainly not in all and to turn it into an immutable rule applicable in all cases, once again, permits the legal fiction to dominate the facts.

Under the standard of reasonable care adopted by the court today the factors which sustained the landowner’s immunity and inspired the exceptions under prior law will no longer be considered decisive. But, as indicated, most of them have some probative value and to that extent they will continue to have some relevance in determining whether, under all the facts and circumstances, there has been a breach of duty.

The fact that the injury occurred on the defendant’s property is certainly a relevant circumstance in assessing the reasonableness of the defendant’s conduct. The defendant has the right to use his property and to develop it for his profit and enjoyment. That often means that he must conduct dangerous activities or permit dangerous instruments and conditions to exist on the premises. However under those circumstances he must take reasonable measures to prevent injury to those whose presence on the property can reasonably be foreseen. Whether the threat is posed by a dangerous condition or a dangerous activity is of little significance in itself. It may have some bearing on the effort required to prevent the injury, but that depends on the facts of the particular case. In this connection it is important to note that the elimination of the immunity conferred by prior law should not pose an unreasonable burden on the use of the property since all that is now required is the exercise of reasonable care under the circumstances (Basso v Miller, 40 NY2d 233, 241, supra). The defendant can always show that it would have been unduly burdensome to have done more (see 2 Harper and James, Torts, p 1437).

The fact that the plaintiff entered without permission is also a relevant circumstance (Basso v Miller, supra, p 241). It may well demonstrate that the plaintiff’s presence was not foreseeable at the time and place of the injury. However the likelihood of one entering without permission depends on the facts of the case including the location of the property in relation to populated areas, its accessibility and whether there have been any prior incidents of trespassing in the area where the injury occurred. The age of the plaintiff is also significant in view of the "well-known propensities of children to climb about and play” (Collentine v City of New York, 279 NY 119, 125). And, of course, the fact that the entry was unauthorized may be of little or no importance if the plaintiff’s presence was discovered by the owner in time to avoid the injury.

This does not mean that every case involving injury on private property raises a factual question for the jury’s consideration. In any negligence case the court must always determine as a threshold matter whether the facts will support an inference of negligence or lack of negligence (Basso v Miller, 40 NY2d 233, supra; cf. Andre v Pomeroy, 35 NY2d 361). However in this particular case the question of the reasonableness of the parties’ conduct cannot be resolved as a matter of law.

In sum, several of the factors considered decisive under prior law may be usefully integrated into the general theory of tort liability so as to provide standards and guidelines in determining a landowner’s liability. With this in mind the order of the Appellate Division should be modified by reversing and granting a new trial with respect to all defendants except the Metropolitan Transit Authority and the Long Island Railroad Co., and affirmed as to them.

Chief Judge Breitel

(concurring in part and dissenting in part). I would reinstate the complaint against the City of New York for the negligent maintenance of its park fence all but abutting on the railroad yard with its overhead electric wires and boxcars used for play by children and adolescents. I would otherwise affirm the dismissal of the complaint against the various railroad defendants.

For the reasons indicated in my concurring opinions in Barker v Parnossa, Inc. (39 NY2d 926), and in Basso v Miller (40 NY2d 233), decided herewith, there is neither need nor desirability to work a wholesale abandonment of rules and principles in order to resolve the'issues in this and the cases being decided by the court at the same time. It is not in the grand tradition of the common law to do so. Most important, it is dangerous because abrupt departures in the development of the common law are not likely to be free of policy error and are disruptive of the law’s stability. Evolutionary development of the law continues to be the lodestar for judicial innovation in the law, burdened as it is by the braking process of stare decisis and the obligation to preserve predictability. Similar inhibitions, for obvious reasons, do not apply to the legislative process, where error may be summarily corrected.

On this view, this case too is resolvable justly and predictably by the principles applicable to child trespassers and the maintenance of public parks and in accord with the rules which have evolved in this State and a vast majority of the jurisdictions in the United States. This is provided, of course, that one is not improperly diverted by nomenclature and classification, which are but symbols at best of the realities to which the law must address itself.

To apply the principles already discussed in my concurring opinion in Barker v Parnossa (supra) it is appropriate to treat first with the liability of the railroad defendants. In the Barker case, the view was taken by me that the rules applicable to child trespassers elsewhere in the United States and restated in Restatement of Torts 2d, as it had indeed been restated in the first Restatement, were in fact applicable in this State, albeit never avowed.

The common-law rules governing the liability of a property owner to a child, trespasser as formulated in section 339 of the Restatement of Torts 2d read:

"A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

"(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

"(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

"(c) the children because of their youth do not discover the condition or realize the risk, involved in intermeddling with it or in coming within the area made dangerous by it, and

"(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

"(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

Decedent was concededly a trespasser on the applicable railroad’s property. His status is not, however, dispositive. The railroad knew that children regularly left the city’s park through the fence and climbed onto the boxcars. Indeed, four children had previously been electrocuted in the same manner as Scurti; one child had been electrocuted only one month before. Thus, the railroad knew that children were likely to trespass on its property.

Moreover, in light of the four previous electrocutions, the railroad should have realized that, under the circumstances, the electric wires involved an unreasonable risk of death to trespassing children.

While there is no fixed age limit at which a child is presumed to realize the risk involved in intermeddling with a condition existing on the land, courts have generally denied liability when the child is over 14 years of age (see Attractive Nuisance—Age—Mentality, Ann., 16 ALR3d 25, 74-81; Prosser, Torts [4th ed], §59, at pp 373-374). Decedent was almost 15 years of age at the time of his death and had completed his first year of high school. One of his contemporaries testified that he was aware of the danger presented by the high-tension wires. While this is persuasive evidence that decedent should have realized the dangers in playing on the boxcar, it would be essentially a question of fact whether he appreciated the danger presented by the overhead wires, provided however the other bases for liability existed (see Prosser, op. cit., at p 374 [a boy of high school age may reasonably be expected not to appreciate the danger of high-tension wires]).

In contradistinction to the Barker case (supra), the balance of the conflicting social policies of freedom to use one’s land and the desire to protect children must here be struck in favor of the railroad. The property was in constant, productive use as a railroad switching yard. Railroad police patrolled the area and chased the children when they could. The railroad could reasonably expect the city to maintain its fence and was under no duty to erect one of its own (Railroad Law, § 52). Under the circumstances, the only further precaution which could have been taken was to shut down the operations of the electric railway, which, in fact, was eventually done for reasons or on bases not developed. Thus, the utility to the railroad of maintaining the electric railway and the burden of eliminating the danger were great indeed when compared to the risk to the child involved (see Prosser, op. cit., at p 375). Hence, the trial court was correct in dismissing the complaint with respect to the railroads and the Metropolitan Transportation Authority.

The propriety of the dismissal of the complaint with respect to the city is, however, another matter. Decedent’s status as a trespasser on the railroad property is irrelevant (see Ehret v Village of Scarsdale, 269 NY 198, 208). The city owes to those who use its parks a duty of ordinary care against foreseeable danger (see, e.g., Caldwell v Village of Is. Park, 304 NY 268, 274). What degree of care is "reasonable” is ordinarily a jury question (id.).

In this case, the city was aware or should have been aware that children would come to its park, and, through holes in the fence and over a "well beaten” path, regularly would go onto the immediately adjoining railroad property to play on the boxcars. The fence separating the park from the railroad property was in an almost constant state of gross disrepair. No warning signs were posted by the city, nor was a park-keeper on guard regularly to prevent the fences from being cut or the children from going onto the railroad’s property. The accident in this case occurred around 4 p.m. on a June afternoon. Most important, the city was aware that four similar accidents had occurred, and thus could reasonably foresee a recurrence of tragedy. Yet it took no precautions whatsoever. Hence, it was a question of fact, at the very least, whether the city failed to exercise reasonable care.

Accordingly, I vote to modify the order of the Appellate Division to reinstate plaintiff’s complaint against the City of New York and order a new trial, and otherwise affirm.

Jasen, J.

(dissenting). I concur with Chief Judge Breitel’s analysis of the issue of the railroads’ liability. I cannot, however, subscribe to the proposition that the city was responsible, as a matter of law, for the injuries sustained by the plaintiff’s intestate. The city did erect a fence between its playground and the adjoining railroad property and made continuing efforts to maintain it. The difficulty was that the children, in order to use the railroad property as a shortcut route to school, kept cutting holes in the fence. The only way to have maintained an adequate childproof barrier between the playground and the railroad property was to station parkkeepers on the playground on a permanent basis. Under the circumstances, I believe that such a requirement would be unreasonably burdensome. The city provided a playground that in itself was reasonably safe and secure and made efforts to prevent children from crossing from the playground to the railroad property. The city is not an insurer against injury arising from activities conducted, or conditions existing, on adjoining or neighboring property. Accordingly, I would affirm the order of the Appellate Division in its entirety.

Judges Gabrielli, Jones, Fuchsberg and Cooke concur with Judge Wachtler; Chief Judge Breitel concurs in part and dissents in part and votes to modify in a separate opinion; Judge Jasen dissents and votes to affirm in another opinion.

Order modified and the case remitted to Supreme Court, Queens County, for a new trial in accordance with the opinion herein, with costs to abide the event, and, as so modified, affirmed, without costs.  