Held v. 7-Eleven Food Store

• Decision Date: 08 May 1981
• Citation: 438 N.Y.S.2d 976,108 Misc.2d 754
• Parties: William T. HELD, Individually and d/b/a Held's Janitorial Service and Carolyn Held, Individually, Plaintiffs, v. 7-ELEVEN FOOD STORE and Southlands Corporation, Defendants.
• Court: New York Supreme Court

Page 976

438 N.Y.S.2d 976

108 Misc.2d 754

William T. HELD, Individually and d/b/a Held's Janitorial Service and Carolyn Held, Individually, Plaintiffs, v. 7-ELEVEN FOOD STORE and Southlands Corporation, Defendants.

Supreme Court, Erie County.

May 8, 1981.

Paul William Beltz, P.C., Buffalo (Russell T. Quinlan, Buffalo, of counsel), for plaintiffs.

Brown, Maloney, Gallup, Roach & Busteed, P.C., Buffalo (James E. Morris, Buffalo, of counsel), for defendants.

DECISION

SAMUEL L. GREEN, Justice.

Defendants move for summary judgment dismissing plaintiffs' causes of action in strict products liability and breach of warranty. The underlying action seeks damages for personal injuries sustained on February 28, 1977 when plaintiff William T. Held fell in an allegedly defective hole located in a raised concrete walkway directly in front of the door to a 7-Eleven store franchised to plaintiff by defendant Southlands Corporation.

A search of the entire record in this case discloses that as a result of severe weather during the winter of 1976-1977, a portion of the concrete walkway directly in front of the 7-Eleven store cracked and raised up so that the front doors would not open. Defendants, as a temporary measure, hammered a hole in the concrete and filled it with gravel and stone up to the level just below the right front door so that at least one door could be used. On the afternoon of plaintiff's accident, he entered the 7-Eleven store through this door, remained in the store a few minutes, purchased some items, exited the store through the same door and then fell in the area directly in front of the store where defendants had filled the hole with gravel.

Plaintiffs' first cause of action is for negligence in which it is alleged that defendants improperly and inadequately maintained and repaired the area in question. This cause of action is not challenged by defendants on their motion for summary judgment.

However, plaintiffs allege in their complaint and bill of particulars that defendants made express and/or implied warranties that the entrance and exit area in question was safe for customers and further allege strict tort liability because this area was not fit for the purpose for which it was intended.

Initially this Court accepts in principle that "the sufficiency of the complaint cannot be made to turn on the presence of any particular word or words. It is the totality of the facts themselves which must be examined to determine the complaint's validity, not plaintiff's characterization of them or the conclusion which (he) seeks to draw from them." (Perlmutter v. Beth David Hospital, 308 N.Y. 100, 107, 123 N.E.2d 792). In this regard plaintiffs allege in their Bill of Particulars that the "product or products involved are the actual concrete surface of the area where the plaintiff fell and the ingredients as well as the failure to repair same after notice was given."

In opposing the motion for summary judgment, plaintiffs rely heavily upon obiter dicta in Rainbow v. Elia Building Co., 49 A.D.2d 250, 373 N.Y.S.2d 928, that "under appropriate circumstances a failure to warn may be a defect such as will support a claim founded on the theory of strict liability." (citations omitted, at p. 252, 373 N.Y.S.2d 928). However, this Court does not find such circumstances to be present in this case for several reasons.

Virtually all efforts to extend strict tort liability to transactions in which service predominates have been unequivocally rebuffed in this state as well as in other jurisdictions. (See e. g., Sears, Roebuck & Co. Inc. v. Enco Associates, 43 N.Y.2d 389, 398, 401 N.Y.S.2d 767, 372 N.E.2d 555; Milau Assoc., Inc. v. North Avenue Development Corp., 42 N.Y.2d 482, 488, 489, 398 N.Y.S.2d 882, 368 N.E.2d 1247; Perlmutter v. Beth David Hospital, 308 N.Y. 100, 104, 123 N.E.2d 792; Mastro v. County of Schnectady, 74 A.D.2d 976, 426 N.Y.S.2d 187; Sala v. Tomlinson, 73 A.D.2d 724, 725, 422 N.Y.S.2d 506; Gordon v. Holt, 65 A.D.2d 344, 349, 412 N.Y.S.2d 534; see also 29 A.L.R.3d 1425, 1426; LaRossa v. Scientific Design Co., 3 Cir., 402 F.2d 937, 943; Stuart v. Crestview Mut. Water Co., 34 Cal.App.3d 802, 110 Cal.Rptr. 543-549; Gagne v. Bertran, 43 Cal.3d 481, 275 P.2d 15, 20; Magrine v. Spector, 53 N.J. 259, 250 A.2d 129; cf. Newmark v. Gimbels Inc., 54 N.J. 585, 258 A.2d 697, 701).

In this case, defendants were providing Mr. Held with a service not a product. The concrete where plaintiff fell is not a "product" that defendants regularly distribute to the consuming public. Although there may be a point at which a service transaction is transformed into a sales transaction, that stage clearly was not approached during the service provided in this case.

Further, the policy considerations responsible for the evolution of the doctrine of strict tort liability have no relevance to the facts of this case. As originally proposed strict products liability was to provide a means of recovery of damages for product-caused accidents against retailers and wholesalers in situations where the manufacturer was not amenable to the jurisdiction of the Court and the manufacturer's pockets were not deep enough. (See e. g., Prosser, The Assault Upon the Citadel, 69 Yale L.J. 1099, 1114-24) This consumer oriented policy also evolved to provide a means for injured parties to recover damages against manufacturers of defective products who were otherwise insulated from direct contact with the consumer or user by the wholesalers and retailers involved in...