386 N.Y.S.2d 564, 352 N.E.2d 868 (1976); see also, Kush v. City of Buffalo, 59 N.Y.2d 26, 29, 462 N.Y.S.2d 831, 449 N.E.2d 725 (1983). Here, beyond peradventure of doubt, defendant breached its duty to plaintiff.
Burch, an employee of the post office, invited Harry and Oscar Banks onto postal property to ride the gate as he pushed it shut. By inviting the children to ride on the gate, Burch owed a reasonable duty of care to the plaintiff to watch that plaintiff was not injured while Burch was closing the gate. Stagl v. Delta Airlines, Inc., 52 F.3d 463, 467 (2d. Cir. 1995)(Applying New York law, the duty of a landowner is to take reasonable precautions to protect individuals from dangers which are foreseeable.). New York has long recognized "that it is considered foreseeable that children will enter upon premises to climb about and play." Dart v. Solomon, 210 A.D.2d 581, 583, 619 N.Y.S.2d 817 (3d Dept. 1995), quoting, Collentine v. City of New York, 279 N.Y. 119, 125, 17 N.E.2d 792 (1938)
Moreover, the evidence unequivocally demonstrates that Harry and Oscar Banks were no strangers to climbing the gate. Ingram and Cole each testified that they saw children, including the Banks boys, climbing the fences at the post office on numerous occasions. Harry and Oscar both testified that Burch had many times allowed them to ride on the gate while it was being closed. Accordingly, defendant breached the duty it owed to plaintiff.
Even if the court were to accept defendant's contention that Burch did not invite the children onto the premises, liability would still attach to defendant. Initially it must be noted that New York has abolished the distinctions between invited and uninvited persons on property when establishing the duty owed to the person. Basso, 40 N.Y.2d at 241. Rather, New York imposes a duty upon landowners to prevent the occurrence of foreseeable injuries, regardless of whether plaintiff is a trespasser, licensee or invitee.
It is undisputed that just before closing the gate Burch observed the children in the proximity of the gate. Burch's actions, considering his personal knowledge that Harry Banks was often on postal property and that Burch had at times encouraged Harry's presence, were unreasonable as he failed to ensure that the children were not on the gate while he closed it. Regardless of whether Burch invited Harry or where he thought Harry was going, it was reasonably foreseeable that Harry and Oscar would jump on the fence. Certainly the burden of turning one's head immediately before pushing the gate closed is not overly burdensome. Thus, whether or not Burch invited Harry to ride on the gate, he knew that Harry was on the gate while he pushed it closed. Pushing the gate closed while a child is climbing on it constitutes conduct below that of a reasonably prudent person.
In sum, it is clear that by inviting Harry onto postal property, Burch had a duty to reasonably protect Harry from injury. By allowing him to ride the gate while he closed it, Burch breached his duty and was the proximate cause of Harry's injuries
Hence, plaintiff has established its case of negligence with respect to Harry Bank's injuries against defendant.
Defendant asserts two arguments which it claims bar this court from imposing liability upon it. First, defendant contends that "there is no jurisdiction in this Court for a claim of negligence based on a failure to provide heightened measures to keep children off Post Office property." Defendant's Brief, p. 28. Specifically, defendant relies upon the discretionary function exception to the Federal Tort Claims Act. See 28 U.S.C. § 2680(a)
The Supreme Court has instructed that one of the purposes of the discretionary function exception to the FTCA was to "prevent judicial 'second guessing' of legislative and administrative decisions grounded in social economic, and political policy through the medium of an action in tort." United States v. Varig Airlines, 467 U.S. 797, 814, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984). Indeed, defendant correctly points out that decisions by federal officials relating to security and safety features at Government facilities are discretionary acts for which no tort claim may lie. See e.g., Fazi v. United States, 935 F.2d 535, 539 (2d Cir. 1991).
After careful consideration of defendant's argument, the court finds that the discretionary function exception is inapplicable to the case at bar. Plaintiffs' claims are not premised upon an argument that the Postal Service should have taken additional methods to ensure that children were not able to gain access to postal property. Rather, plaintiff maintains that it was the affirmative actions by defendant's employee Burch, in contravention of existing post office policy, which resulted in the tortious actions. It was Burch who invited Harry to climb on the gate, or at the very least, failed to make sure that Harry was not hanging onto the gate while it was being closed.
More, Burch's actions were in violation of an already existing policy at that postal location. Two supervisors testified that children are not permitted to play on post office property and Burch was specifically instructed that Harry Banks was not to be on postal property. Thus, plaintiff's actions do not arise from claims that the post office should have done more to keep children off the property. Instead, plaintiff claims that Burch did not follow an existing policy. No discretionary act is implicated in connection with plaintiff's claims, and therefore, the discretionary function doctrine does not bar plaintiff's action. See United States v. Gaubert, 499 U.S. 315, 324, 113 L. Ed. 2d 335, 111 S. Ct. 1267 (1991)("If the employee violates the mandatory regulation, there will be no shelter from liability because there is no room for choice and the action will be contrary to policy.").
Defendant next argues that Harry Banks was comparatively negligent and assumed the risk of climbing on the gate. New York law provides that:
In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of the risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.