breach. Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531 (Ct. App.1981). In the case at bar, Conrail has failed to establish, as a matter of law, these elements.
The New York Court of Appeals, in the case of Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 (Ct. App.1976), adopted a single standard of liability requiring an owner to maintain reasonably safe conditions in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. Id. at 568; see also Fellis v. Old Oaks Country Club, Inc., 163 A.D.2d 509, 558 N.Y.S.2d 183, 184 (2d Dep't 1990); Larini v. Biomass Industries, Inc., 918 F.2d 1046, 1052 (2d Cir. 1990); Huang v. Lee, 734 F. Supp. 71, 72 (E.D.N.Y. 1990).
While what degree of care is reasonable ordinarily presents a jury question, "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." Scurti v. City of New York, 40 N.Y.2d 433, 442, 387 N.Y.S.2d 55 (Ct. App. 1976) (citations omitted). Numerous factors are to be considered to determine whether any inference of negligence can be drawn from a particular set of facts. Where the injury occurred, the dangerousness of the property or the risk of injury posed by the property are relevant factors and must be balanced against the utility of the property and the public interest in the free use of property. Id at 442. The foreseeability of the plaintiff's presence at the time and place of the injury is another important factor. Id at 442.
Taking these considerations into account, this court concludes that the third party defendants did not, as a matter of law, breach their duty of care to the plaintiff by failing to warn or failing to fence in the property adjacent to the railroad tracks. Support for this conclusion lies on several pillars. First, the property in question is not inherently dangerous or defective. It does not include dangerous traps, pitfalls or hidden defects. The entire underpinnings of the Conrail's allegation of dangerousness is the fact that the property is situated next to Conrail's railroad tracks.
Additionally the plaintiff's injuries did not occur on the third party defendants' property. It is undisputed that the plaintiff walked approximately half a mile along the tracks before he tripped and struck his head. With each step the plaintiff took that fateful night in October, the foreseeability of such an injury by Miron Building Products or Big V Supermarkets decreased. See Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99. Where should the line be drawn? One hundred feet? Two hundred feet? Half a mile? Two miles? There can be no bright line standard to make such a determination. Such decisions must be made on a case by case basis and it is this court's decision that the fact that the plaintiff traveled one half of a mile from the third party defendants' property, takes him outside the realm of foreseeability upon which liability may be based.
Furthermore, while it is well established that the law exacts a greater standard of care for those who are unable to care for themselves, such a infants, the aged, or the infirmed, such are not the facts of this case. The plaintiff at bar was an adult who was clearly aware of the character of the property he was traversing. Moreover, when balancing the risk of injury posed by the property against the utility of the property and the public interest in the free use of property, the scales tip decidedly in favor of granting summary judgment. It would be cost prohibitive and unwarranted to impose upon every owner of property adjacent to a railroad to erect a fence on its property or to provide warnings of the dangers associated with railroads.
In sum, for the reasons previously articulated, the court finds Conrail's arguments for reconsideration unpersuasive. The development of facts as to the existence and nature of a beaten path upon which the plaintiff alleges he entered Conrail's property would not affect the court's decision to grant summary judgment. Accordingly, both the request for reconsideration and the request for leave to reargue must be denied.
IT IS SO ORDERED.
Dated at Albany, New York
July 13, 1994
Hon. Thomas J. McAvoy
Chief U.S. District Judge