Brown v. Neff
| Decision Date | 15 December 1997 |
| Docket Number | No. 2,No. 1,1,2 |
| Citation | 668 N.Y.S.2d 873,175 Misc.2d 151 |
| Parties | , 1998 N.Y. Slip Op. 98,019 Jae BROWN, Plaintiff, v. Edgar L. NEFF, d/b/a J.R.'s Auto Repair, f/k/a A.M. Auto Repair, Defendant and Third-Party Plaintiff. Donna L. Moore, as Executrix of Norman E. Tidd, Deceased, et al., Third-Party Defendants. (Action) Richard N. WOOD, Plaintiff, v. Edgar L. NEFF, d/b/a J.R.'s Auto Repair, f/k/a A.M. Auto Repair, Defendant. (Action) |
| Court | New York Supreme Court |
Thaler & Thaler, Ithaca (Richard John, of counsel), for Edgar L. Neff.
Mlynarski & Cawley, P. C., Binghamton (Theodore J. Mlynarski, Jr., of counsel), for Donna L. Moore.
Richard M. Wallace, Ithaca, for Jae Brown.
Williamson Clune & Stevens, Ithaca (Paul D. Sweeney, of counsel), for Richard N. Wood.
The driver, Richard N. Wood, and passenger, Jae Brown, were injured when a left front tire blew out causing the truck they occupied to leave the road and overturn. Both were seriously injured. The two were engaged in the course of their employment by Norman Tidd, doing business as Ithaca Rigging, Inc.
Wood and Brown bring claims against Edgar Neff, the owner of an automotive repair shop, alleging negligence as well as intentional and negligent misrepresentation. On a prior motion, an additional claim against Neff, for breach of warranty, was dismissed (Brown v. Neff, 159 Misc.2d 186, 603 N.Y.S.2d 707).
Neff, on March 12, 1990 issued a certificate to the owner of the truck, Norman Tidd, attesting that a State safety inspection had been performed and that the truck met all requirements. The accident happened five months later on August 15, 1990. The cause, according to a State Police report, was a defective left front tire.
Discovery having been completed, Neff now moves to dismiss the negligence claims of Wood and Brown. Tidd, a third-party defendant, joins Neff, the third-party plaintiff, in the motion. Neff argues that, even if the left front tire was visibly defective at the time of the inspection and that his inspection was negligently performed, he owed no duty to warn plaintiffs since both were fully aware of the defective condition of the tire before the accident and assumed the risk. By continuing to operate the machine with knowledge of the defect and the consequent danger, Neff contends, the chain of causation between his negligent inspection and the accident was broken by the supervening conduct of the plaintiffs. Hence, his negligence, if any, was not a proximate cause of the accident.
We agree with defendant that the available facts suggest that Wood was well aware of the dangerous condition of the tire. Wood denies that he had any responsibility for the maintenance of the truck, and took no notice of the condition of the tires. There is evidence, however, that Wood had advised his son, also employed by Tidd, to find other work because the truck was unsafe. Brown claims ignorance of the danger and, at the moment, there is no dispositive proof to the contrary.
Miller v. Higgins, 57 A.D.2d 1010, 394 N.Y.S.2d 497, held that a violation of the inspection statute could be a proximate cause of a later accident, assuming the defect (inadequate brakes) existed at the time of the inspection, should have been discovered in the exercise of reasonable care, and that the cause of the accident could be attributed to the specific defect which the inspection had failed to discover and act upon, as required by law. Here, there is evidence that the tire was visibly bald, or balding, at the time of the inspection and that this condition continued until August when the accident occurred. We accept that conclusion, for present purposes. It would seem, therefore, that questions of fact exist regarding the issues of negligence and proximate cause.
The threshold question, however, is whether Neff owed any duty to Wood and Brown. If not, the negligence and proximate cause questions recede into irrelevance. Section 311(1) of the Restatement, Second, of Torts states the pertinent rule: "One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results ... (b) to such third persons as the actor should expect to be put in peril by the action taken".
Clearly, the driver and passenger of a vehicle which is certified to be safe, but which a reasonably careful inspection would have shown to be unsafe, are among the "third persons" who, Neff should have realized, would be imperiled. (See: Restatement, Second, Torts § 311, comment d, Illustration 8, and comment e.) Indeed, Miller v. Higgins, supra, extends the inspector's duty to third parties, including pedestrians, who might be expected to encounter the faulty vehicle in the streets.
Neff argues, however, that even if his duty initially extended to the plaintiffs, any...
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