Albany -The State Thruway Authority was held partially liable by the Court of Claims for a fatal accident in which two young Bronx sisters got through a hole in a chain-link fence and were struck by cars as the girls ran across a parkway near Co-op City eight years ago. The decision will be published tomorrow.
Although an adult who followed the same route, "would have assumed the risk of injury", Judge Gerald M. Weisberg said, to allow that defense, in this case, would "contradict the doctrine that requires landowners protect children from their own immature choices" Hoey v. State of New York, Claim No. 70614
12-year-old Lynett Hoey and her 11-year-old sister, Angelique, lived on one side of the Pelham Parkway and attended school on the other. During the winter, they walk to and from school for three months due to a bus strike and generally used the nearby pedestrian overpasses to cross the Parkway. Trying to save time on their way home they attempted to - directly cross the road. Angelique was killed, and Lynett, injured.
The Thruway Authority had a duty to maintain the fence controlling access to the Parkway in "a reasonably safe condition," but Judge Weisberg said he would have dismissed the suit if the victims had been adults. "They knew the Thruway was there; they knew it was dangerous; they knew they were prohibited from going upon the roadway and had been told not too at school," he wrote. But he said, "what may not be an unreasonably dangerous condition with respect to an adult, maybe with respect to an infant." The law recognizes that children "often lack the intelligence and maturity to sufficiently protect themselves," he said, and when an owner is aware that children have access to a dangerous condition on its land, "reasonable steps must be taken to alleviate the condition."
The Thruway Authority was well aware that children are using the damaged fence to cross the Parkway, Judge Weisberg said. One official testified that the hole had been repaired 20 times and that he had come across people with wire cutters reopening it during his regular patrols.
The judge found the authority negligent in failing to consider alternatives "to endlessly fixing the chain-link fence," such as the use of wrought iron fencing, which would have made access to the Parkway more difficult.
Although he rejected the state's defense of assumption of the risk, Judge Weisberg found contributory negligence on the part of the victims and the Authority 35% liable for the death of Angelique and 25% liable for Lynett's injuries.
A separate trial to determine the amount of damages will be scheduled.
The Hoey family was represented by Manhattan attorney Peter D. Rosenberg, of Rosenberg, Minc, Bryer & Armstrong. The state was defended by Assistant Attorney General Grace A. Brannigan.
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