Di Ponzio v. Riordan

• Citation: 89 N.Y.2d 578,679 N.E.2d 616,657 N.Y.S.2d 377
• Parties: , 679 N.E.2d 616, 60 A.L.R.5th 889 Richard DI PONZIO et al., Appellants, v. Michael RIORDAN, Appellant, and United Refining Company of Pennsylvania, Doing Business as Kwik Fill, et al., Respondents.
• Decision Date: 20 March 1997
• Court: New York Court of Appeals

Page 377

657 N.Y.S.2d 377

89 N.Y.2d 578, 679 N.E.2d 616, 60

A.L.R.5th 889

Richard DI PONZIO et al., Appellants, v. Michael RIORDAN, Appellant, and United Refining Company of Pennsylvania, Doing Business

as Kwik Fill, et al., Respondents.

Court of Appeals of New York.

March 20, 1997.

Norman A. Palmiere, Rochester, for Richard Di Ponzio and another, appellants.

Volgenau & Bosse, Buffalo (Norman E.S. Greene, of counsel), for United Refining Company of Pennsylvania, respondent.

OPINION OF THE COURT

TITONE, Judge.

Injured by another customer's runaway car while he was on the premises of a self-service filling station, plaintiff sued the premises owner on the theory that it had a duty to ensure that all of its customers abided by regulations requiring their vehicle engines to be turned off during the operation of the gas pumps. We conclude, however, that defendant filling station owner had no duty to protect its customers from the unforeseeable occurrence that led to plaintiff's injury and that, accordingly, the complaint against that defendant was properly dismissed.

Defendant United Refining Co. (URC) owns and operates a self-service filling station in Rochester. According to the complaint allegations and summary judgment submissions, the injury-producing accident occurred on defendant's premises on April 15, 1991. At about 1:00 P.M. on that date, plaintiff Richard Di Ponzio drove into defendant's gas station, exited his car and began to fill his tank with fuel. At approximately the same time, defendant Michael Riordan drove his car into the gas station, stopped opposite plaintiff's vehicle and, without turning off his engine, began pumping gas into his vehicle. Riordan stated during his deposition testimony that the pavement was relatively level and that he placed his console gearshift in the park position.

Riordan took about five minutes to pump gas into his car and then went inside the gas station's storefront enclosure to pay the attendant for his fuel. He left his vehicle running because he had been experiencing problems with the carburetor and was afraid that he would not be able to restart the vehicle if he turned its ignition off. When he exited the store and began walking toward the car, he noticed that it was moving backward toward the rear of plaintiff's vehicle, where plaintiff was still pumping gas. Riordan moved toward the vehicle, but he was unable to reach it in time to stop it from striking plaintiff. Plaintiff, who was pinned between the two cars, suffered a fractured leg.

Plaintiff and his spouse subsequently commenced the present personal injury action against Riordan and URC. Plaintiffs' theory against defendant URC was that it had been negligent in failing to properly train its attendants and that its attendants had been negligent in failing to comply with URC rules requiring that customers be warned to turn off their engines while fueling their vehicles. In support of their claim, plaintiffs cited information obtained during discovery that URC attendants were not supposed to allow customers to pump gas while their engines were running and that the attendants had the ability to turn off a particular pump in the event that a customer refused to comply. They also relied on deposition testimony that on the day of the accident URC's attendants had deliberately turned down the sound on an intercom system that would otherwise have enabled them both to hear the sound of Riordan's engine and to admonish him to turn it off.

Following discovery, defendant URC moved for summary judgment dismissing the complaint on several grounds, including the lack of a cognizable legal duty, the lack of a proximate causal relationship between its alleged negligence, if any, and the accident and the unforeseeability of the accident. Supreme Court denied the motion, holding that URC, as the premises owner, had a duty to exercise reasonable care and that the questions of foreseeability and proximate cause should be resolved by the fact finder.

On URC's appeal, the Appellate Division reversed and dismissed the complaint against URC. Two of the Justices concluded that URC should not be held liable because the accident was not foreseeable. A third Justice concurred on the separate ground that URC had no duty to protect its customers from "the unforeseeable risk that another patron's car would suffer a mechanical malfunction or inexplicably jump into gear." (224 A.D.2d 139, 147, 645 N.Y.S.2d 368.) Additionally, the concurrer opined that any alleged negligence on URC's part was not the proximate cause of the accident. The remaining two Appellate Division Justices dissented for the reasons set forth in the Supreme Court opinion. Plaintiffs then appealed to this Court pursuant to CPLR 5601(a). ¹

The threshold issue in this negligence action is whether defendant URC had a legally cognizable duty to prevent the accident in which plaintiff Di Ponzio was injured (see generally, Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 584-585, 611 N.Y.S.2d 817, 634 N.E.2d 189). It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition (see, e.g., Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831, 449 N.E.2d 725; Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868). It is also clear that this duty may extend to controlling the conduct of third persons who frequent or use the property, at least under some circumstances (see, Pulka v. Edelman, 40 N.Y.2d 781, 783, 390 N.Y.S.2d 393, 358 N.E.2d 1019). The duty of a landowner or other tort defendant, however, is not limitless. It is an elementary tenet of New York law that "[t]he risk reasonably to be perceived defines the duty to be obeyed" (Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99).

The existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question for determination by the court (see, Palka v Servicemaster Mgt. Servs. Corp., supra, at 585, 611 N.Y.S.2d 817, 634 N.E.2d 189). In analyzing questions regarding the scope of an individual actor's duty, the courts look to whether the relationship of the parties is such as to give rise to a duty of care (see, e.g., Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 513 N.Y.S.2d 356, 505 N.E.2d 922; Pulka v. Edelman, supra, at 783, 390 N.Y.S.2d 393, 358 N.E.2d 1019), whether the plaintiff was within the zone of foreseeable harm (see, e.g., Palsgraf v. Long Is. R.R. Co., supra ) and whether the accident was within the reasonably foreseeable risks (see, e.g., Danielenko v. Kinney Rent A Car, 57 N.Y.2d 198, 455 N.Y.S.2d 555, 441 N.E.2d 1073). The nature of the inquiry depends, of course, on the particular facts and circumstances in which the duty question arises. The analysis is also driven by considerations of public policy. As we stated in Waters v. New York City Hous. Auth., supra, at 229, 513 N.Y.S.2d 356, 505 N.E.2d 922, "[t]he common law of torts is, at its foundation, a means of apportioning risks and allocating the burden of loss."

In this case, the focus of the inquiry is on the foreseeability of the risk. Foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated (Prosser and Keeton, Torts § 31, at 169-170, and n 15 [5th ed] ). Further, although virtually every untoward consequence can theoretically be foreseen "with the wisdom born of the event" (Greene v. Sibley, Lindsay & Curr Co., 257 N.Y. 190, 192, 177 N.E. 416), the law draws a line between remote possibilities and those that are reasonably foreseeable because "[n]o person can be expected to guard against harm from events which are * * * so unlikely to occur that the risk * * * would commonly be disregarded" (Prosser and Keeton, op. cit., § 31, at 170; see, e.g., Danielenko v. Kinney Rent A Car, supra ).

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