Dara v. State

I respectfully dissent.

The essence of this case is that the claimant is an infant of tender years and thus entitled to a degree of care greater than that ordinarily afforded to an adult (Harrow v. State of New York, 21 A D 2d 571). While the majority opinion readily concedes this, it places great stress upon the claimant’s status as a trespasser in denying a recovery. Yet, even trespassers are protected from the infliction of intentional, wanton, or willful injuries and from affirmative acts of negligence (Carradine v. City of New York, 13 N Y 2d 291), and the maintenance of an inherently…