Brzostowski v. Coca-Cola Bottling Co.

• Decision Date: 11 April 1962
• Docket Number: COCA-COLA
• Citation: 226 N.Y.S.2d 464,16 A.D.2d 196
• Parties: Ivy BRZOSTOWSKI, Appellant, v.BOTTLING CO., Inc., Respondent. Sigmund BRZOSTOWSKI, by his Guardian ad Litem, Ivy Brzostowski, Appellant, v.BOTTLING CO., Inc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 464

226 N.Y.S.2d 464

16 A.D.2d 196

Ivy BRZOSTOWSKI, Appellant, v. COCA-COLA BOTTLING CO., Inc., Respondent.

Sigmund BRZOSTOWSKI, by his Guardian ad Litem, Ivy

Brzostowski, Appellant, v. COCA-COLA BOTTLING CO., Inc., Respondent.

Supreme Court, Appellate Division, Fourth Department.

Argued Jan. 5, 1962.

Decided April 11, 1962.

Tony Mancuso, Syracuse, for appellants.

Mackenzie, Smith, Lewis, Michell & Hughes, Syracuse, John F. Lawton, Syracuse, of counsel, for respondent.

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HALPERN and HENRY, JJ.

HALPERN, Justice.

On a summer day in 1957, the infant plaintiff, a boy 10 years of age, and two other boys entered the defendant's bottling plant through a large, open garage door, and asked an employee for a bottle of 'coke'. The Coca-Cola plant was across the street from a school, and children often played on the lawn in front of the plant and from time to time employees gave them bottles of Coca-Cola and other soft drinks. However, on prior occasions the drinks had been given to the children while they were standing in the driveway, just outside the open garage door. On the occasion in question, the defendant's employee gave each of the boys a bottle of Coca-Cola while they were standing inside the plant. He then left them and returned to his work. The employee made no objection to the boys' presence in the plant or to their remaining there while they consumed the drinks. The boys were about 12 to 15 feet from a moving conveyor belt which was electrically operated and which carried bottles of soft drink to a loading platform. The employee did not warn the boys to stay away from the conveyor belt or to stay away from the machinery generally. After the boys had consumed their drinks, two of them put the empty bottles on the floor between the door and the machines. The infant plaintiff walked over and placed the empty bottle on the conveyor belt. It started to fall through a hole in the belt; the plaintiff tried to retrieve it and his arm was caught in the machine. Responding to his outcry and that of his friends, the employee came back on the scene and turned off the conveyor machine.

Actions were brought for the injury to the infant plaintiff and for the consequent medical bills. Upon the trial, the manager of the defendant's plant was called as a witness for the plaintiffs and he testified that children were 'good customers' for the company's product and that the company was desirous of acquiring and maintaining their good will. Among other things, it arranged for tours of the plant by children in escorted groups, and it always gave them free soft drinks at the conclusion of the tours.

The Trial Justice submitted the case to the jury and the jury returned a verdict in favor of the infant plaintiff in the amount of $1,000 and in the amount of $500 in favor of his father. The Trial Justice subsequently set aside the verdicts and granted the motion to dismiss the complaints made at the close of the case, upon which he had reserved decision.

The dismissal of the complaints was, in our opinion, erroneous. Under a proper charge, the jury would have had the right to find that the infant plaintiff was a licensee upon the premises and that the defendant, through its employee, had failed to exercise the care required under the circumstances to warn the child of the danger of coming into contact with the moving machinery.

First, as to the infant plaintiff's status, the jury would have been justified in finding that he was a licensee rather than a trespasser. The boys had the right to rely upon the apparent authority of the defendant's employee to give consent to their entering upon the premises to obtain soft drinks and to their remaining there while consuming the drinks and disposing of the empty bottles. In view of the proof of the practice upon prior occasions, the jury had the right to find that the employee had apparent authority to give the boys the drinks. An employee at a bottling plant who has apparent authority to give away drinks also has apparent authority to allow the donees to enter the plant to obtain the drinks and to remain there while consuming them, or at least a jury might so find.

Furthermore, apart from any question of the authority of the specific employee involved in the case, the jury would have been justified in finding, in view of the past practice of the company and its evident interest in retaining the good will of the children in the neighborhood, that the boys had the right to assume that the company had no objection to their entering the plant to obtain free drinks. It is true that on prior occasions the boys had happened to remain outside the door when they had asked for and received the free drinks, but there was no proof indicating that they had been told, or that they knew or should have known, that it was not permissible for them to go into the plant for the same purpose.

Once it is found that the boys occupied the status of licensees, rather than that of trespassers, it follows that the defendant owed them some duty of care. The duty owing to licensees is generally stated as consisting of two branches: (1) The duty to use care to avoid injuring the licensee by bringing to bear any force against him. (The breach of this duty is usually referred to in the New York cases as active or affirmative negligence [Barry v. New York Cent. & H. R. R. Co., 92 N.Y. 289; see Restatement of Torts, § 341; see, also, Prosser on Torts (2nd ed.), pp. 445-449; 2 Harper and James, The Law of Torts § 27.10, pp. 1475-1476].) (2) The duty to exercise care to warn the licensee of any danger known to the landowner which is not known to the licensee and which the licensee could not be expected to perceive in time to avert injury (Restatement of Torts, § 342, quoted with approval in Higgins v. Mason, 255 N.Y. 104, 109, 174 N.E. 77, 79). Such a danger is sometimes referred to in the cases as a 'trap' (Larmore v. Crown Point Iron Co., 101 N.Y. 391, 394, 4 N.E. 752, 753). The plaintiff having 'the status of a licensee', the defendant owed him 'the duty to exercise reasonable care to disclose * * * dangerous defects known to defendant and not likely to be discovered by plaintiff' (Krause v. Alper, 4 N.Y.2d 518, 521, 176 N.Y.S.2d 349, 351, 151 N.E.2d 895). Section 342 of the Restatement of Torts reads: 'A possessor of land is subject to liability for bodily harm caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he (a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the condition or realize the risk, and (b) invites or permits them to enter or remain upon the land, without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to warn them of the condition and the risk involved therein.' This was quoted by the Court of Appeals from § 212 of an earlier draft of the Restatement which became § 342 without change, as 'clearly stat[ing]' the 'duty of an owner of premises to a gratuitous licensee.' (Higgins v. Mason, supra, 255 N.Y. 104, 109, 174 N.E. 77, 79). (See, also Prosser on Torts (2nd ed.) pp. 449-450; 2 Harper and James, The Law of Torts, § 27.9, pp. 1471-1474.)

The first branch of the duty owing to a licensee cannot be invoked in this case. While moving machinery was involved, the machinery would not have caused injury to the child if the child had not voluntarily come in contact with it. Therefore it cannot be said that this is a case of the defendant's bringing to bear a force against the child.

However, the second branch of the duty is applicable here. The moving machinery might well be found to have been a trap from the standpoint of the child licensee. While an adult would have appreciated the danger of coming into contact with a moving conveyor belt, it might well be found that a 10-year-old child could not reasonably be expected to understand and appreciate the danger. In that case, the defendant would be under a duty to warn the child of the danger. This is not to say that there is a greater duty to a child licensee than there is to an adult licensee. The duty remains the same, that is, a duty to warn of dangers known to the defendant but not known to the licensee, or readily perceivable by him. But in applying this principle the fact that the occupier of the land is dealing with a child must, of course, be taken into account. What is not a trap as to an adult may well be a trap as to a child. The occupier must take into account the natural curiosity of children, their propensities and proclivities, the attractiveness of moving machinery to them, and their 'lack of appreciation of danger, and [their] consequent indiscretion' (DiBiase v. Ewart & Lake, Inc., 228 App.Div. 407, 409-410, 412, 240 N.Y.S. 132, 135, aff'd. 255 N.Y. 620, 175 N.E. 339). The occupier must take 'into consideration the well-known propensities of children to climb about and play' (Collentine v. City of New York, 279 N.Y. 119, 125, 17 N.E.2d 792, 795; see, also, Prosser on Torts (2nd ed.) p. 450.)

The need to warn child licensees of dangers which might be obvious to adult licensees is well stated in Comment 'b' of § 342 of the Restatement of Torts:

'If the licensees are adults, the fact that the condition is obvious is usually sufficient to apprise them, as fully as the possessor, of the full extent of the risk involved in it.

'On the other hand, the possessor should realize that the fact that a dangerous condition is open to the perception of children licensees may not be enough to entitle him to assume that they will appreciate the full extent of the risk involved therein. * * * Even if they know of the condition, there may be risks which it is not reasonable to assume that children will appreciate. In such case, the possessor does not perform his duty by merely calling the condition to the attention of the...