In Wedlock v. Troncoso (185 Misc 2d 432, 712 N.Y.S.2d 328 [Sup Ct, Richmond County 2000]), the plaintiff police officer was injured when he fell off the defendant's fence, which the plaintiff officers were climbing in pursuit of a suspect.

The court dismissed the officer's common-law negligence claim, finding that it was unreasonable "for property owners to maintain a fence to withstand the force of two police officers jumping and climbing on it with gear approaching 400 or more pounds." (Wedlock, 185 Misc 2d at 440-41.)

The court held that the property owner did not breach a duty of care to foreseeable plaintiffs, and that the plaintiff failed to "establish that the defendants were negligent in maintaining their fence or that the fence was improper or dangerous or not fit for its intended purpose." (Id. at 441.)

However, the Wedlock court began its discussion by stating that "a fence is not a walkway, nor is it a staircase, nor is it a ladder which should be made safe for those who venture to traverse it--a fence is different--it is a barrier," the purpose of which "is to keep people 'out,' not to invite them in." (Id. at 439.)

Thus, the court's analysis was framed by the nature of fences, and its express statement that "a fence is not a stairway with an invitation to climb it." (Id.)