Di Ponzio v. Riordan

• Citation: 224 A.D.2d 139,645 N.Y.S.2d 368
• Parties: Richard DI PONZIO and Joyce L. Di Ponzio, Respondents, v. Michael RIORDAN, Defendant. United Refining Company of Pennsylvania, d/b/a Kwik Fill, and Rochester Gasoline Corp., Appellants.
• Decision Date: 12 July 1996
• Court: New York Supreme Court Appellate Division

Page 368

645 N.Y.S.2d 368

224 A.D.2d 139

Richard DI PONZIO and Joyce L. Di Ponzio, Respondents, v. Michael RIORDAN, Defendant United Refining Company of Pennsylvania, d/b/a Kwik Fill and Rochester Gasoline Corp., Appellants.

Supreme Court, Appellate Division Fourth Department.

July 12, 1996.

Vilgenau & Bosse by Norman Greene, Buffalo, for appellant.

Palmiere Law Firm, P.C. by Norman Palmier, Rochester, for respondents.

Connors and Corcoran, no brief, no argument, Rochester, for defendant.

Before DENMAN, P.J., and GREEN, WESLEY, BALIO and BOEHM, JJ.

WESLEY, Justice.

We are presented in this case with an issue of first impression for appellate courts in New York: is it foreseeable that an unattended parked car, with its motor running, would inexplicably move and strike a patron at a gas station? We hold that, as a matter of law, it is not foreseeable that such a chain of events would occur.

I

On April 15, 1991, at about 1:00 P.M., Richard Di Ponzio (plaintiff) arrived at a Kwik Fill gas station in the City of Rochester owned by United Refining Company of Pennsylvania, d/b/a Kwik Fill, and Rochester Gasoline Corp. (defendants). Plaintiff parked his car behind a Pontiac owned by Michael Riordan (Riordan), with the rear of his car facing Riordan's. The engine in Riordan's car was running. Signs are posted near the gas pumps directing patrons not to smoke and to stop their engines. Plaintiff exited his car and began to pump gas.

Riordan testified at his deposition that the transmission of his car was set in park. After pumping gas into his car, Riordan went inside the station to pay. As Riordan walked out the door of the station, he observed his car beginning to roll backwards. He ran to his car as quickly as he could, but was unable to get to it before it struck plaintiff, pinning plaintiff's legs between the two cars. Plaintiff had not been aware that the motor in Riordan's car was running, and did not notice that Riordan's car was moving until it struck him. The space between the two cars was level and flat. Riordan and two Kwik Fill employees present at the station estimated that Riordan's car had been at the gas station for five or six minutes before it began to move. Riordan does not know what caused the car to move.

The Kwik Fill station had become a self-service station in the month prior to the accident. A two-way intercom system had been installed at that time to allow the attendants to communicate with the customers. Randy Sawdey, assistant manager of the station, testified at his deposition that the intercom was turned off when the accident occurred. Robert Carter, the manager, testified, however, that the intercom was turned on, and that the volume was set between one and two--loud enough to hear engines running. Carter and Sawdey both testified that the attendants were supposed to remain at the counter and monitor the gas pumps from inside the station.

Because the intercom picked up a lot of noise, it was often turned off by Carter, in violation of Kwik Fill's rules. According to Carter, the purpose of Kwik Fill's requirement that customers shut off their motors is to protect both patrons and employees from the risk of explosion. Sawdey could not remember any prior accidents involving injuries to customers, even when the station was a full-service station.

Plaintiff and his wife commenced this action against defendants and Riordan alleging, inter alia, that the accident occurred as a result of the negligence of defendants in their ownership and operation of the gas station. After discovery, defendants moved for summary judgment dismissing the complaint and Riordan's cross claims. Defendants argued that: (1) there was no evidence that they violated a legal duty owed to plaintiff; (2) any alleged negligence was not a proximate cause of plaintiff's injuries; and (3) the accident and injuries were not foreseeable as a matter of law.

Supreme Court denied defendants' motion. The court also held that, as owners of the property, defendants had a duty to exercise reasonable care under the circumstances. The court also held that proximate cause and foreseeability present questions of fact in this case, relying upon our decision in Ouimet v. Humble Oil & Ref. Co., 55 A.D.2d 855, 390 N.Y.S.2d 497, lv denied 41 N.Y.2d 802, 393 N.Y.S.2d 1027, 362 N.E.2d 627.

II

"Unlike foreseeability and causation, which are issues generally and more suitably entrusted to fact finder adjudication, the definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration" (Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189). In general, landowners have a duty to act as reasonable persons in maintaining their property " 'in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk' " (Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868). Since Basso, landowners have been absolved of the heightened duties of care that they previously owed their business invitees and guests (Adams v. New York City Tr. Auth., 88 N.Y.2d 116, 643 N.Y.S.2d 511, 666 N.E.2d 216 ).

Supreme Court properly held that defendants owed plaintiff a duty of reasonable care under the circumstances. The question whether defendants fulfilled their duty of reasonable care presents a question best left to the trier of fact (see, Baker v. Sportservice Corp., 142 A.D.2d 991, 992, 530 N.Y.S.2d 412).

Defendants continue to argue on appeal that a gas station has no duty to control the movement of its patrons' automobiles, citing Stone v. Williams, 97 A.D.2d 509, 467 N.Y.S.2d 879, affd 64 N.Y.2d 639, 485 N.Y.S.2d 42, 474 N.E.2d 250. However, as noted by the court, when the Court of Appeals affirmed the decision of the Second Department in Stone v. Williams, supra, 64 N.Y.2d, at 641-642, 485 N.Y.S.2d 42, 474 N.E.2d 250, the Court of Appeals did not specifically decide whether any such duty existed. Moreover, unlike Stone v. Williams, this case does not involve a patron moving an automobile, but rather a patron who left an automobile engine running unattended. This is a situation over which gas station operators have considerably greater control.

Defendants argue that there is no general common-law duty to control the conduct of third persons, citing Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019, rearg. denied 41 N.Y.2d 901, 393 N.Y.S.2d 1028, 362 N.E.2d 640. A landowner has a duty to take reasonable precautions to secure its premises if it knows or has reason to know from past experience " ' "that there is a likelihood of conduct on the part of third persons * * * which is likely to endanger the safety" ' " of users of the premises (Dyer v. Norstar Bank, 186 A.D.2d 1083, 588 N.Y.S.2d 499, lv denied 81 N.Y.2d 703, 594 N.Y.S.2d 717, 610 N.E.2d 390, quoting Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519, 429 N.Y.S.2d 606, 407 N.E.2d 451). Thus, the question of defendants' liability turns on the foreseeability of the conduct of the third persons (see generally, Kush v. City of Buffalo, 59 N.Y.2d 26, 33, 462 N.Y.S.2d 831, 449 N.E.2d 725; Earsing v. Nelson [appeal No. 1], 212 A.D.2d 66, 70, 629 N.Y.S.2d 563).

It was certainly foreseeable to defendants that a customer would leave his engine running, and that it would create the risk of explosion and fire. Defendants' employees testified that they tried to reduce the fire and explosion hazards by requiring customers to shut off their engines. Accordingly, we cannot say that defendants owed no duty to control the conduct of third persons in this instance.

Plaintiff argues that a duty is created by the City of Rochester Fire Prevention Code, which imposes a duty upon operators of self-service gasoline stations to control ignition sources. Although that ordinance shapes the scope of the aforementioned duty to protect against risks of fire and explosion, the ordinance does not create any further liability on the part of defendants in this case. "Manifestly, a violation of [a] statute cannot 'establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury' "(Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932, quoting DeHaen v. Rockwood Sprinkler Co., 258 N.Y. 350, 353, 179 N.E. 764).

III

Supreme Court did not err in holding that there is a question of fact whether defendants' alleged negligence was a proximate cause of plaintiff's injuries. Proximate cause is generally a question of fact (see, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666, rearg. denied 52 N.Y.2d 784, 436 N.Y.S.2d 622, 417 N.E.2d 1010; Fizette v. Kuhn [appeal No. 1], 190 A.D.2d 1051, 594 N.Y.S.2d 480). "[W]here only one conclusion may be drawn from the established facts * * * the question of legal cause may be decided as a matter of law" (Derdiarian v. Felix Contr. Corp., supra, at 315, 434 N.Y.S.2d 166, 414 N.E.2d 666), but that is not the case here.

Defendants argue that the negligence of Riordan in leaving his car running was the sole proximate cause of plaintiff's injuries. They rely upon several New York cases in which the failure of a driver to control his or her vehicle was held to be the cause of a plaintiff's injuries, and the landowner's premises merely furnished the condition or occasion for the occurrence (see, Stone v. Williams, supra, 64 N.Y.2d, at 641-642, 485 N.Y.S.2d 42, 474 N.E.2d 250 [driver's accelerator stuck as driver was backing toward gas pump]; Margolin v. Friedman, 43 N.Y.2d 982, 983, 404 N.Y.S.2d 553, 375 N.E.2d 734 [automobile driven by patron of car wash went out of control]; Weber v. City of New York, 24...