
    Roulmaldo Martinez, an Infant by His Mother and Natural Guardian, Rosa Martinez, et al., Respondents, v. Kaufman-Kane Realty Co., Inc., Appellant.
    Argued May 7, 1974;
    decided June 12, 1974.
    
      
      Benjamin H. Siff, J. Robert Morris and Thomas R. Newman for appellant.
    
      Jacob D. Fuchsberg and Charles F. McGuire for respondents.
   Memorandum. Since injury to infant plaintiff resulted from an artificial, dangerous condition on defendant’s property, the decisive issue was the foreseeability of the risk of the accident which resulted in the injury. Under the facts of this case, the duty of care owed plaintiff could be correlated to the risk of harm reasonably to be perceived, regardless of status, whether that of trespasser, licensee, or invitee in the traditional sense (see Restatement, 2d, Torts, § 339; Prosser, Torts [4th ed.], § 59). Defendant’s conceded neglect turned the fire escape ladder into a “ trap ”; the question remaining was the foreseeability of one such as plaintiff coming into contact with the ladder (see Restatement, 2d, Torts, § 339, subd. [a]). It is relevant too that the fire escape, a potentially lethal trap, overhung a public way which children frequently used as their playground (see Mayer v. Temple Props., 307 N. Y. 559, 565; Restatement, 2d, Torts, § 369; cf. § 368, including Comments and Illustrations). The question being close, submission to the jury was required, and its verdict for the plaintiff may not be disturbed.

Wachtler, J. (concurring).

It is evident that the respondent in this case was a trespasser. If I favored continued adherence to the legal ramifications attached to that classification in New York, I would be constrained to reverse in this case (Beauchamp v. New York City Housing Auth., 12 N Y 2d 400, 405). However, for the reasons so well delineated by the California Supreme Court in Rowland v. Christian (69 Cal. 2d 108) I feel the legal classifications of trespasser, guest and invitee, no longer have validity.

In the case at bar, the majority has extended the definition of trap ” to include a defective fire escape hanging over the grillwork of a store, 13 feet above the ground. Obviously, any negligently maintained property that later causes injury to a person can, with hindsight, be considered to have been a trap. And if this fire escape is deemed to be a “ trap ” for children, I know of no negligently maintained property in a congested urban area that could not be considered such a trap.

It appears to me that by continuously expanding on the exceptions ” to the tripartite classification (supra) this court is slowly moving to a de facto abandonment of a doctrine that I feel should be abolished de jure. Viewing the “ uninvited ” nature of respondent’s entry onto appellant’s property merely as a factor in determining foreseeability, I do not think the jury verdict was improper as a matter of law.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Rabin and Stevens concur in memorandum; Judge Wachtler concurs in a separate memorandum.

Order affirmed, with costs. 
      
       Since the jury was charged that respondent was a trespasser, with all the legal ramifications that now attach to such a designation, respondent actually was given a heavier burden than I feel he deserved to bear in this ease. Therefore, I see no reason to order a new trial.
     