Baker v. Sportservice Corp.
| Decision Date | 07 July 1988 |
| Citation | 142 A.D.2d 991,530 N.Y.S.2d 412 |
| Parties | Patricia F. BAKER, as Executrix of the Estate of Edward C. Baker, Deceased, and Patricia F. Baker, Individually, Appellants, v. SPORTSERVICE CORPORATION, and Niagara Sanitation Co., Inc., Respondents, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Paul William Beltz, P.C. by Russell Quinlan, Buffalo, for appellants.
Maloney, Gallup, Roach, Brown & McCarthy, P.C. by Edmund Brown, Jr., Buffalo, for respondent--Sportservice Corp.
Cohen, Lombardo, Blewett, Fisher, Spandau and Nosek by Anthony Nosek, Buffalo, for respondent--Niagara Sanitation Co., Inc.
Before CALLAHAN, J.P., and DOERR, GREEN, BALIO and DAVIS, JJ.
Plaintiff Patricia Baker, executrix of the estate of Edward Baker, appeals from Special Term's grant of summary judgment dismissing this wrongful death action against defendants Sportservice Corp. (Sportservice) and Niagara Sanitation Company, Inc. (Niagara Sanitation). Plaintiff's decedent, who was delivering dry ice to Sportservice, was crushed to death when his truck rolled forward in the loading dock area and pinned him against a 4 inch by 4 inch beam affixed to the cinder block wall of the loading dock. The loading dock area was about 10 feet wide, as a result of the placement of a large dumpster, leased by Sportservice from Niagara Sanitation, in about one half of the loading area. The loading dock sloped upward about six inches toward the rear, at approximately a two degree angle. When decedent's body was discovered, the truck's engine was running, the transmission was in neutral and the emergency brake, although operable, was not engaged. Plaintiff's complaint against Sportservice alleges, in substance, that Sportservice was negligent by failing to provide plaintiff's decedent with a safe place to unload. Plaintiff's complaint against Niagara Sanitation, in substance, alleges that it negligently placed its dumpster, allowing the area where plaintiff's decedent was working to be dangerously obstructed.
The evidence before Special Term reveals that Niagara Sanitation owned the dumpster that it leased to Sportservice. Sportservice decided where the dumpster would be placed; Niagara Sanitation did not control the placement decision, but could disapprove a particular location if the dumpster could not be serviced easily in that spot. Under these circumstances, Special Term properly granted summary judgment dismissing plaintiff's action against Niagara Sanitation.
We find, however, that questions of fact exist to preclude a grant of summary judgment to Sportservice. Sportservice, as occupier of the premises, owed decedent, whose presence was foreseeable, the duty of reasonable care under the circumstances ( Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868). The evidence reveals that Sportservice allowed only 10 feet of space within which trucks could make deliveries, that decedent's truck was eight feet wide, that a 4 inch by 4 inch beam jutted out from the wall of the loading dock, further reducing the clearance, that the dock sloped upward toward the rear, that no signs or warnings were placed to warn persons making deliveries of either the slope or the limited unloading space, and that no safety devices were provided by Sportservice. Given these facts, whether Sportservice fulfilled its duty of reasonable care presents a question best left to a trier of fact.
Special Term found, as a matter of law, that even if...
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