Denisewich v. Pappas
| Decision Date | 12 March 1964 |
| Citation | 198 A.2d 144,97 R.I. 432 |
| Parties | Helen DENISEWICH v. Marcos PAPPAS. Peter L. DENISEWICH v. Marcos PAPPAS. Ruth E. DAVISON v. Marcos PAPPAS. Ex. 10556 to Ex. 10558. |
| Court | Rhode Island Supreme Court |
Martin Malinou, Providence, for plaintiffs.
Gunning & LaFazia, Bruce M. Selya, V. James Santaniello, Jr., Providence, for defendant.
These are three separate actions of trespass on the case brought by business invitees to recover for personal injuries resulting from the alleged negligence of the defendant, the operator of a restaurant. They are before us on the plaintiffs' exceptions to the decision of a justice of the superior court sustaining demurrers to the fourth amended declarations on five of their ten grounds. The facts out of which the alleged cause of action arose are similarly averred in each declaration. We shall, therefore, confine our discussion to the declaration of Helen Denisewich, but what we say shall be applicable to the other declarations.
The declaration alleges in substance that plaintiff, a business invitee, was injured at about 11 p. m. on August 27, 1960, when an automobile operated at a reasonable speed by another business invitee on the restaurant parking lot hit and broke through the restaurant wall adjacent to the booth at which plaintiff was seated. It further alleges that notwithstanding a custom of business owners maintaining parking lots for customer use to provide barriers for the prevention of collisions, defendant had the an unreasonable length of time neglected to provide an adequate barrier between the parking lot and the restaurant wall which wall was averred to be 'unsubstantial.'
The five grounds upon which the superior court sustained the demurrer and which are the only ones now before us are in substance: (1) Failure to state a cause of action as a matter of law; (2) Absence of any duty as a matter of law to plaintiff on the facts alleged; (3) Failure to allege properly proximate causation; (4) Insufficiency of facts to show proximate causation and an intervening cause disruptive of the chain of causation; and (5) Failure to allege facts showing in what manner the wall was unsubstantial.
In sustaining the demurrer the trial justice found that there was no duty on defendant to erect a barrier 'in anticipation of the dangerous operation of a vehicle that may be parked on the adjoining parking lot,' and that 'as a matter of law' there was 'no duty upon the owner of the premises to erect a barrier to protect the invitees who are eating therein from the so-called anticipation of the negligent operation of a vehicle by a third party over whom the defendant has no control.'
The initial question is whether defendant's failure to provide an adequate barrier between the restaurant and the adjoining parking area constituted a breach of his duty to use reasonable care to maintain his premises in a condition reasonably safe for the purpose of the invitation extended to plaintiff.
The plaintiff relies on Schnars v. Union R. R. Co., 410 Pa. 538, 189 A.2d 884. In that case the defendant employer as a means of providing access to its plant maintained a small tunnel for vehicular and pedestrian traffic and was duty bound to provide a safe place to work for its employees including a safe ingress to and egress from that place of work. The plaintiff-employee, a pedestrian, as he was proceeding along the walkway in the tunnel was struck by an automobile which had departed from the tunnel roadway. The court found that the law and fact supported the verdict for the plaintiff notwithstanding the contention that there was no proximate causation, and held that it was for the jury to determine whether the defendant's failure to erect reasonable markers or barriers between roadway and walkway constituted negligence. The attempt made here to distinguish that case because it arose under the Federal Employers' Liability Act fails since the ultimate issue both under that act and at common law was whether the danger which resulted in the injury could have been foreseen.
Although plaintiff argues that a logical extension of the decision in Schnars makes the injury here suffered actionable without necessity for alleging anything more as a breach of defendant's duty than his failure to erect an adequate barrier between the restaurant and the parking area, she goes further in her declaration and alleges in substance that the omission to provide a barrier to prevent collisions was in violation of what is common and customary.
In that posture the test as to defendant's alleged violation of a duty to plaintiff is whether he was bound to foresee that in the use of the parking area an automobile might break through the restaurant wall because of his failure to provide a barrier in accordance with the dictates of custom and usage. If that occurrence was probable and from usual experience likely to happen, it was foreseeable; if it was unusual or unlikely to happen or was a slightly probable or remote event, then it was not within the realm of foreseeability. Mercurio v. Burrillville Racing Ass'n, R.I., 187 A.2d 665, 667; Prue v. Goodrich Oil Co., 49 R.I. 120, 123, 140 A. 665.
In these days, off-street parking facilities have become part and parcel of our everyday existence. They are so affected with a public interest that the cities and towns of this state pursuant to art. XXXII of the amendments to our constitution may now acquire property by eminent domain, or otherwise, in order to establish and construct that type of facility. The zoning ordinances of many of our cities and towns require provision for adequate off-street parking as a condition precedent to various types of land utilization. High rental areas once occupied almost exclusively by buildings have become inundated with and surrounded by parking lots and garages. For commercial and industrial establishments to provide large areas for customer and employee parking is commonplace and shopping centers and discount houses with parking areas capable of accommodating hundreds of motor vehicles are no longer rarities.
It is in this setting, where that which is common usage in a parking lot is presumed to be within the common knowledge, that we consider the legal sufficiency of plaintiff's declaration. See Brooks v. Sears, Roebuck & Co., 302 Mass. 184, 19 N.E.2d 39. In these circumstances the touchstone for the existence of the breach of duty complained...
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