Would a Fence Which Can Be Easily Climbed Over Defeat the Purpose of Its Installment
In Koppel v. Hebrew Academy (191 AD2d 415 [2d Dept 1993], lv denied 82 NY2d 652 ), an infant plaintiff who was climbing upon a 10-foot cyclone fence surrounding the defendants' property cut her hands on what plaintiffs alleged to be the very sharp ends of the top of the fence.
The Court granted the defendants' summary judgment motion and held that (at 416) "to hold that a landowner must maintain a fence so as to make it safe to climb over would encourage people to do so, and would defeat the very purpose of the fence."
Again in 1999 the Appellate Division, Second Department, reiterated the fence climber-assumption of risk rule in Stevenson v. Flore Fence Corp. (262 AD2d 550 [2d Dept 1999]).
In citing to Koppel (supra) the Appellate Division held that the trial court properly granted summary judgment to the defendants when an 11-year-old plaintiff fell to the ground and injured his arm while climbing over a temporary fence installed by the defendant.