Dufur v. Lavin

• Decision Date: 10 May 1984
• Docket Number: No. 1,No. 2,1,2
• Citation: 101 A.D.2d 319,476 N.Y.S.2d 389
• Parties: C. Jeffrey DUFUR, Respondent-Appellant, v. Matthew LAVIN, Appellant-Respondent, and Bowling Green Lanes, Inc., Respondent-Appellant, et al., Respondents. (Action) Matthew LAVIN, Appellant-Respondent, v. Russell WILSON et al., Respondents, and Bowling Green Lanes, Inc., Respondent-Appellant. (Action)
• Court: New York Supreme Court — Appellate Division

Page 389

476 N.Y.S.2d 389

101 A.D.2d 319

C. Jeffrey DUFUR, Respondent-Appellant, v. Matthew LAVIN, Appellant-Respondent, and Bowling Green Lanes, Inc., Respondent-Appellant, et al.,

Respondents. (Action No. 1.)

Matthew LAVIN, Appellant-Respondent, v. Russell WILSON et al., Respondents, and Bowling Green Lanes, Inc., Respondent-Appellant. (Action No. 2.)

Supreme Court, Appellate Division Third Department.

May 10, 1984.

Daniel H. Mahoney, Albany, for appellant-respondent.

Maynard, O'Connor & Smith, Albany (Roger J. Cusick, Albany, of counsel), for Bowling Green Lanes, Inc., respondent-appellant.

Bloomberg & Santola, Albany (Daniel R. Santola, Albany, of counsel), for C. Jeffrey Dufur, respondent-appellant.

Carpenter & Keefe, Cairo (Charles H. Carpenter, Cairo, of counsel), for Joseph Zalenke, respondent.

Schrade & Kimmey, Albany (Karl H. Schrade, Albany, of counsel), for DBA Products Company, respondent.

Carter, Conboy, Bardwell, Case & Blackmore, Albany (Forrest N. Case, Jr., Albany, of counsel), for Atlas Products Company, respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

MAHONEY, Presiding Justice.

These actions, which were consolidated for trial, arose out of a September, 1974 fire in which plaintiffs C. Jeffrey Dufur and Matthew Lavin, then ages 17 and 19, were injured. At the time of the accident, plaintiffs were working for defendants David Lutz and Russell Wilson, who were in the business of refinishing bowling pins. The fire occurred on premises leased by Lutz and Wilson from defendant Joseph Zelenke. Lutz and Wilson hired Lavin on a piecework basis and, according to Lavin, authorized him to hire some of his friends to help.

Plaintiffs' proof demonstrated that shortly after midnight on the night in question, Lavin, Dufur and another boy Lavin had gotten to help were working alone cleaning bowling pins and were using a pin cleaning machine which had been loaned to Lutz and Wilson by defendant Bowling Green Lanes, Inc. The electric motor which powered the machine was not the sealed, "explosion proof" type and, therefore, the machine was designed for use with nonflammable detergents. Plaintiffs offered evidence that, on the night of the fire, the pin cleaning machine was being used with Shrinkcote Extender, a highly inflammable solvent designed for use in refinishing bowling pins. Plaintiffs testified that the fire broke out in the pin cleaning machine and quickly spread to the floor and a wall. Plaintiffs attempted to beat the flames out with their jackets. While some testimony indicated that the fire in the machine was extinguished, other testimony indicates that the machine remained burning. Plaintiffs attempted to carry the machine out of the building when the sleeves of Dufur's shirt caught fire. The machine was dropped, spilling burning liquid onto the floor. Plaintiffs ran through the fire to escape and the clothing of both boys caught fire. After they were outside, Lavin beat out the flames on Dufur and himself. Both Dufur and Lavin suffered serious burns.

In separate actions, plaintiffs sued Lutz, Wilson, Zelenke and Bowling Green as well as Atlas Products Company, which manufactured Shrinkcote Extender, and DBA Products Company, which manufactured the pin cleaning machine. Dufur included in his action a cause of action against Lavin. Trial Term dismissed the causes of action against Zelenke and Atlas at the close of plaintiffs' cases and submitted the remainder of the actions to the jury. The jury found no liability on the part of DBA, but found in favor of plaintiffs against Lutz, Wilson and Bowling Green. In each action, the jury found no contributory negligence. In Dufur's action, however, Lavin was found to have been negligent. In Dufur's action, $190,000 in damages were apportioned: 30% against Lutz, 30% against Wilson, 35% against Bowling Green and 5% against Lavin. In Lavin's action, $15,000 in damages were apportioned: 30% against Lutz, 30% against Wilson and 40% against Bowling Green. An amended judgment was entered, as were orders disposing of various trial and posttrial motions. Lavin took an appeal and Bowling Green and Dufur took cross appeals.

Lavin argues that Dufur's cause of action against him should have been dismissed by Trial Term or, alternatively, that the finding of negligence on his part in Dufur's action was inconsistent with the finding of no contributory negligence in his action. Lavin also contends that Trial Term improperly dismissed his causes of action against Zelenke and Atlas. Finally, Lavin urges that the award of damages was inadequate. Bowling Green argues that plaintiffs failed to prove a prima facie case against it, that plaintiffs were contributorily negligent such as to bar their causes of action, and that the jury charge was improper. Dufur, though he took a cross appeal, does not challenge the final judgment.

Initially, we affirm Trial Term's dismissal of the causes of action against Zelenke. While the lessor was apparently aware that Lutz and Wilson were going to operate a bowling pin refinishing business, he did not know what materials would be used or that inflammable liquids would be located in the building. Moreover, the lease was not to commence until October 1, 1974, four days after the fire and, while Zelenke did give Lutz and Wilson permission to store some bowling pins in the building prior to the lease, he did not give permission to store equipment or chemicals or to commence work. Since Zelenke did not retain control over the premises, he had no duty to prevent negligence (Clarke v Unanue, 97 A.D.2d 888, 470 N.Y.S.2d 712; Fessler v. Brunza, 89 A.D.2d 640, 453 N.Y.S.2d 81). Also, the evidence does not indicate that the building contained a structural defect upon which liability could be predicated (see Strade v. Ryan, 97 A.D.2d 880, 470 N.Y.S.2d 707). Finally, while plaintiffs did introduce evidence that the building failed to contain ventilation and fire fighting equipment, which failure they contended was a proximate cause of their injuries, they failed to introduce any statutes, ordinances or regulations which imposed a duty on Zelenke's part to provide such equipment. Nor is there a common-law duty on the part of a landlord to equip the premises with fire prevention or fighting devices absent an agreement to the contrary or other special circumstances (see 49 Am.Jur.2d, Landlord & Tenant, § 891, p. 868).

As to Atlas, plaintiffs' actions proceeded on the theories of breach of warranty and strict products liability predicated on the role of Shrinkcote Extender as a cause of the fire. At trial, it became evident that Lutz had been employed by Atlas as a sales representative and that large quantities of Atlas products, including Shrinkcote Extender, were within the premises on the night of the fire. Theorizing that the quantity of products exceeded that necessary for the bowling pin refinishing business, Lavin opposed Atlas' motion to dismiss on the theory of respondeat superior. We reject Lavin's argument on this principle because it was never pleaded by plaintiff, nor was a motion made to amend the pleadings to conform to the proof (see Le Sawyer v. Squillace, 14 A.D.2d 961, 962, 221 N.Y.S.2d 455, mot. for lv. to app. den. 11 N.Y.2d 648, 230 N.Y.S.2d 1025, 184 N.E.2d 198). Additionally, the record offers no support for claims against Atlas based on breach of warranty and strict products liability. In our view, Trial Term properly dismissed the causes of action against Atlas.

Bowling Green argues that plaintiffs failed, as a matter of law, to prove a prima facie case against it and that, therefore, Trial Term should have dismissed the causes of action against it. Bowling Green claims that it owed no duty of care to plaintiffs. Where one loans property to another, a duty of care arises (La Rocca v. Farrington, 276 App.Div. 126, 93 N.Y.S.2d 363, affd. 301 N.Y. 247, 93 N.E.2d 829; Knapp v. Gould Auto Co., 252 App.Div. 430, 433, 299 N.Y.S. 688; 9 N.Y.Jur.2d, Bailments and Chattel Leases, § 76, pp. 88-89). While the conduct necessary to satisfy such duty depends on the facts and circumstances of the case, including the type and purpose of the bailment, it cannot be said that one who loans property has no duty to act reasonably. In this case, while Bowling Green contends that the bailment of the pin cleaning machine was gratuitous, there is evidence to support a finding of a mutual benefit bailment (see 9 N.Y.Jur.2d, Bailment and Chattel Leases, § 6, pp. 16-17). Bowling Green no longer cleaned its own bowling pins and it appears that it was about to become the primary, if not only, customer of Lutz and Wilson, whose business required a pin cleaning machine. Thus, the bailment had some commercial benefit to Bowling Green.

Additionally, there is some evidence from which the jury could have found Bowling Green negligent. There is evidence that, while the pin cleaning machine was designed to operate only with the cover closed, it was operable with the cover open at the time it was lent to Lutz and Wilson. There was expert testimony that a fire in the machine could not have occurred had the cover been closed. It is also clear that Bowling Green's representative gave no instructions or warnings to Lutz and Wilson regarding what products should or should not be used with the machine. Finally, there is evidence that Bowling Green was aware of the danger of fire involved in the bowling pin refinishing operation and that inflammable liquids might have been used in pin cleaning machines. Indeed, the testimony indicates that Bowling Green stopped refinishing its bowling pins because its insurance carrier prohibited such activity in its...