Balsam v. Delma Engineering Corp.

• Citation: 139 A.D.2d 292,532 N.Y.S.2d 105
• Parties: Rachel BALSAM and Martin Balsam, Plaintiffs-Respondents, v. DELMA ENGINEERING CORPORATION, Defendant-Respondent, and New York City Transit Authority, The City of New York, Carlos Diaz, Henry Byrd, Defendants, Exxon Corporation and 315 West 96th Street Service Center, Inc., d/b/a Atlas Garage, Defendants-Appellants, and 96 Auto Care, Inc., Defendant.
• Decision Date: 04 August 1988
• Court: New York Supreme Court Appellate Division

Page 105

532 N.Y.S.2d 105

139 A.D.2d 292

Rachel BALSAM and Martin Balsam, Plaintiffs-Respondents, v. DELMA ENGINEERING CORPORATION, Defendant-Respondent and New York City Transit Authority, The City of New York Carlos Diaz, Henry Byrd, Defendants Exxon Corporation and 315 West 96th Street Service Center Inc., d/b/a Atlas Garage, Defendants-Appellants, and 96 Auto Care, Inc., Defendant.

Supreme Court, Appellate Division, First Department.

Aug. 4, 1988.

Marc S. Moller, of counsel (David C. Cook with him on the brief; Kreindler & Kreindler, New York City, attorneys) for the plaintiffs-respondents.

George A. Burrell, of counsel (Robert L. Haig and James V. O'Gara with him on the brief; Kelley Drye & Warren, New York City, attorneys) for defendant-appellant Exxon Corp.

Jeremy Heisler, of counsel (Kevin B. Pollak with him on the brief; Killarney Rein Brody & Fabiani, New York City, attorneys) for defendant-appellant 315 West 96th Street Service Center, Inc.

Before KUPFERMAN, J.P., and SANDLER, SULLIVAN, KASSAL and WALLACH, JJ.

SULLIVAN, Justice.

The underlying accident in this personal injury action occurred on January 24, 1986, when an automobile driven by Rachel Balsam, the plaintiff, which was stopped while she waited in line in a traffic lane on West 96th Street, was struck in the rear by a van that had skidded on ice. After exiting her automobile and while standing in the street surveying the damage to her car, she was injured when a third vehicle struck the rear of the van, and caused it to lurch forward and pin her against her own automobile. The ice which covered West 96th Street had allegedly formed after Delma Engineering Corporation, a defendant, discharged water onto the roadway in sub-freezing weather during the course of work for the New York City Transit Authority, also a defendant, at a nearby construction site.

Plaintiff and her husband, who sues derivatively, seek damages from the driver of the van and the third vehicle for negligence in the operation of their vehicles. They also sue 315 West 96th Street Service Center, Inc., the operator of the Exxon service station outside which the accident took place and into which plaintiff, at the time, was waiting to enter, and Exxon Corporation, the station's supplier of gasoline and motor oil, as well as the City of New York. The latter is charged with a breach of its duty to maintain West 96th Street at the site of the accident in a reasonably safe condition for travel and passage thereon. Only the liability of Service Center and Exxon is at issue on this appeal.

The service station, which, insofar as is relevant, consists of six contiguous gasoline bays, separated by walls perpendicular to and abutting the north side of 96th Street and its westbound traffic lanes, does not provide a waiting area for vehicles on its premises. Its customers drive into the next available bay directly from the street. An eight-foot wide sidewalk separates the station's property line from the 96th Street roadway, which is a six-lane, two-way street. The layout of the service station has remained unchanged since 1981 when Service Center, which leases the premises from a third party, not a defendant herein, took over its operation. The premises, however, had previously been used as an Exxon service station for at least twenty-five years. While Exxon holds title to the gasoline pumps, which it allows Service Center to use, it does not own, lease, occupy, possess or exercise control over the station. Nor did it design its physical layout, or exercise control over the position or placement of the pumps.

On the morning of the accident plaintiff drove to the service station to purchase gasoline. Since all the bays were occupied, she stopped her car in the middle of the three westbound lanes of West 96th Street, alongside the parking lane. The front of her car was nearest to the service station's most easterly bay. After she had been waiting for several minutes the accident occurred, as already described. It is uncontroverted that neither Exxon nor Service Center ever maintained the roadway or cleared it of snow or ice.

In her second amended complaint, which is at issue here, plaintiff alleged that Exxon and Service Center had negligently failed to keep that portion of West 96th Street in and about the vicinity of the entranceway to the service station free of ice. Exxon's answer asserted affirmative defenses including lack of ownership, operation, maintenance and control of the premises. Service Center's answer asserted failure to state a cause of action as an affirmative defense. The answers of the other defendants interposed cross-claims against both Exxon and Service Center.

After the taking of depositions, Exxon and Service Center separately moved for summary judgment dismissing the second amended complaint and the cross-claims. In its papers Exxon demonstrated that its only relationship to the station was a contract to supply gasoline and motor oil, and for the loan of the gasoline pumps. Service Center argued that, absent a claim that it had caused the icy condition, it was not obligated to clear the street of ice, a duty which is solely that of the municipality. Nor, it argued, does the queue of customers' cars waiting for an available gasoline pump constitute a special use of the street.

Plaintiff opposed the motions and cross-moved for leave to serve a third amended complaint, asserting, for the first time, deficiencies in the design of the service station, as a result of which its customers were encouraged regularly to utilize the street as a waiting area, and a principal-agent relationship between Exxon and Service Center. In support of the cross-motion plaintiff submitted an affidavit from an architect who opined, without elaboration or explanation, that had fewer gasoline pumps been installed and the remaining pumps situated further back from and parallel to 96th Street, instead of perpendicular, a waiting area could have been created within the service station premises, and that this design defect and the mode of operation of the service station was a direct and proximate cause of plaintiff's accident. As to Exxon, plaintiff relied on the visible display of Exxon's trademark on the station and pumps; its status as lessee of the premises between 1963 and 1980 ¹ and as the station's gasoline and oil supplier since 1980 under a contract pursuant to which it had the right to determine the specific area designated as safe for ingress and egress for the making of deliveries; and Exxon's status as owner and provider of the pumps, which, pursuant to separate agreement, Service Center took "as is where is."

The motion court denied the motions to dismiss, holding essentially that an abutting property owner who uses the public way for his own convenience and benefit must maintain it in a reasonably safe condition. With respect to Exxon, the court found that it "maintained sufficient incidents of control, by virtue of owning the pumps and tanks, display of its logo etc., to be liable for injury caused by a dangerous condition on the premises. The agreements between Exxon and Service Center indicate that Exxon as owner might have exercised some control over the layout and placement of the gasoline pumps." The court granted plaintiff's cross-motion for leave to serve a third amended complaint, ruling that Exxon and Service Center would neither be surprised nor prejudiced by such amendment and that whether the design of the service station contributed to the accident presented an issue of fact. We reverse, grant the motions for summary judgment and dismiss the complaint against both Exxon and Service Center.

Neither the second nor third amended complaint has any merit insofar as Exxon is concerned, and its joinder as a party defendant cannot be justified on any jurisprudential ground. Absent a duty of care to the person injured, a party cannot be held liable in negligence. ( Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 342, 162 N.E. 99, reh. den. 249 N.Y. 511, 164 N.E. 564.) Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of such premises. ( Gilbert Props. v. City of New York, 33 A.D.2d 175, 178, 305 N.Y.S.2d 650, affd. 27 N.Y.2d 594, 313 N.Y.S.2d 408, 261 N.E.2d 406; Kilmer v. White, 254 N.Y. 64, 69, 171 N.E. 908; Mollino v. Ogden & Clarkson Corp., 243 N.Y. 450, 154 N.E. 307.) The existence of one or more of these elements is sufficient to give rise to a duty of care. Where none is present, a party cannot be held liable for injury caused by the defective or dangerous condition of the property. ( Dick v. Sunbright Steam Laundry Corp., 307 N.Y. 422, 424, 121 N.E.2d 399.)

Faced with these well-settled principles, plaintiff can muster only one argument against Exxon--its alleged control of Service Center's special use of the street. Even if we accept, arguendo, that a special use of the street existed, none of the factors advanced in support of this argument indicate a type of control by Exxon over Service Center's activities sufficient to give rise to a duty owing to plaintiff.

The display of Exxon's signs and logos at the station is an insufficient basis upon which to impose a duty of care, since such display merely indicates that Exxon's products were sold at the station. ( Price v. Cities Serv. Oil Co., 71 A.D.2d 700, 418 N.Y.S.2d 488; see, Kaplan v. Shell Oil Co., 59 A.D.2d 936, 399 N.Y.S.2d 616.) Equally unpersuasive is plaintiff's assertion of the doctrine of apparent authority without any evidentiary showing indicating in what respect she relied on any representations by Exxon that Service Center was its agent, particularly as it relates to the icy condition in the street or Service Center's alleged use of the street as a waiting area. ( See, Bank v. Rebold, 69 A.D.2d 481, 493, 419 N.Y.S.2d 135.)

The gasoline sales agreement, upon which plaintiff also relies, is merely a supply...