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Sullivan v. Dunham - 161 N.Y. 290, 55 N.E. 923 (1900)


N.Y. Code Civ. Pro. § 1902 authorizes the personal representative of a decedent to maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused, against a natural person who, or a corporation that, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued. N.Y. Code Civ. Pro. § 1902. It covers any action of trespass upon the person, which the deceased could have maintained if he or she had survived the accident.


Defendant property owner hired defendant contractors to remove trees from his property. The two contractors used dynamite to eliminate the trees. One tree flew 400 feet and struck and killed a woman traveling on a public highway. Plaintiff, administratrix of the woman's estate, filed suit against defendants for wrongful death. The trial court entered judgment for the administratrix upon a jury verdict, which the Appellate Division of the Supreme Court in the Second Judicial Department (New York), affirmed. Defendants sought further appellate review.


Was defendant liable for the injury inflicted although his actions were done for a lawful purpose and without negligence or want of skill?




On further appeal, the court affirmed the judgments below. The court held that the property owner and contractors were liable as trespassers, regardless of the care they may have used in doing the work. The court found that their action was a direct invasion of the rights of the decedent, who was lawfully in a public highway, which was a safe place until they made it otherwise by throwing into it the section of a tree. The court found that no showing of negligence was required.

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