In Lee v. New York City Hous. Auth., the Appellate Division, First Department wrote an excellent analysis on the boundaries of tort liability for landowners.  The injured plaintiff in Lee was playing softball on a field that the NYC Housing Authority owned.  While attempting to retrieve a baseball that rolled through a hole in a fence running along the first base line, an automobile struck the plaintiff in the adjacent roadway where the ball rolled.  During depositions, the plaintiff acknowledged that he previously had seen a ball roll underneath the same fence on a prior occasion.

The Court dismissed the case against the NYC Housing Authority based on the first prong of any negligence action — i.e., whether the alleged tortfeasor breached a duty of care.  The Court also stated that even if it held the landowner had breached a duty of care under these circumstances, it would have dismissed the case based on lack of proximate cause because the hole in the fence was not the legal cause of the accident (the hole in the fence merely furnished the occasion for the ball to roll into the roadway).

The First Department’s analysis is worth a read.