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Tagle v. Jakob

Tagle v. Jakob

Court of Appeals of New York

October 16, 2001, Argued ; November 27, 2001, Decided

No. 131

Opinion

 [*167]  [***332]  [**108]    Rosenblatt, J.

Plaintiff was injured when he climbed a tree on defendant's property and touched an electric transmission [****4]  wire suspended through the tree. For reasons that follow, we conclude that his action against defendant must fail.

Defendant Donna Jakob owned property with a one-family house in the Town of Reading, Schuyler County. The rear 10 feet of the backyard was subject to an easement that co-defendant New York State Electric and Gas Co. (NYSEG) acquired in 1945. NYSEG maintains utility poles and uninsulated, overhead electric wires running approximately 25 feet above the ground. Two wires run through a single pine tree growing in defendant's yard. The easement agreement authorized NYSEG to maintain the easement by trimming the tree. In 1996, Jakob leased the property to a tenant, but did not inform the tenant that electric wires passed through the tree. Shortly after taking possession of the property, the tenant invited plaintiff, then 16 years old, to a midday barbeque, during which plaintiff climbed the tree to a height above the wires. Plaintiff touched a wire and fell approximately 25 feet to the ground, suffering burns and other injuries, for which he sued Jakob and NYSEG. Jakob moved for summary judgment. Supreme Court denied Jakob's motion, finding triable issues of fact.  [****5]  Jakob appealed.

A divided Appellate Division modified and dismissed the complaint as to Jakob (275 AD2d 573). The majority held that even if the wires passing through the tree constituted a dangerous condition in NYSEG's easement, NYSEG's exclusive control of the easement absolved Jakob, as servient owner, of liability for injuries caused by that condition. The dissent took the position  [*168]  that even if NYSEG's easement absolved Jakob of the duty to address any dangers posed by NYSEG's use of the easement, Jakob still had a duty to protect the safety of visitors on the property.

Plaintiff appealed to this Court as of right pursuant to CPLR 5601 (a), and we now affirm. Our analysis, however, is slightly different from that of the Appellate Division majority.

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97 N.Y.2d 165 *; 763 N.E.2d 107 **; 737 N.Y.S.2d 331 ***; 2001 N.Y. LEXIS 3465 ****

Hector Tagle, Appellant, v. Donna Jakob, Respondent, et al., Defendant.

Prior History:  [****1]  Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered August 17, 2000, which, with two Justices dissenting, modified, on the law, and, as modified, affirmed so much of an order of the Supreme Court (Samuel J. Castellino, J.), entered in Schuyler County, as denied defendant Donna Jakob's motion for summary judgment dismissing the complaint against her. The modification consisted of reversing so much of the order as denied defendant Jakob's motion, granting the motion and dismissing the complaint against her.

Tagle v Jakob, 275 AD2d 573, affirmed.

Disposition: Appellate court order affirmed, with costs.

CORE TERMS

wires, easement, tenant, servient owner, electric wire, hazard

Torts, General Premises Liability, Dangerous Conditions, Duty to Maintain, Elements, Duty, General Overview, Foreseeability of Harm, Duties of Care, Duty On Premises, Invitees, Reasonable Care, Real Property Law, Landlord & Tenant, Landlord's Duties, Duty to Repair, Encumbrances, Limited Use Rights, Easements, Interference With Easements, Negligence, Duty to Repair, Liabilities of Lessors, Obvious Dangers