Ouimet v. Humble Oil & Refining Co.

• Decision Date: 17 December 1976
• Docket Number: 2,Nos. 1,s. 1
• Court: New York Supreme Court — Appellate Division
• Parties: , 55 A.D.2d 856 Paul OUIMET, Appellant, v. HUMBLE OIL & REFINING COMPANY d/b/a ESSO, Respondent. Paul OUIMET, Appellant, v. Harry KISER d/b/a RAK ESSO Service Station, Respondent. Appeal

Page 497

390 N.Y.S.2d 497

55 A.D.2d 855, 55 A.D.2d 856

Paul OUIMET, Appellant, v. HUMBLE OIL & REFINING COMPANY d/b/a ESSO, Respondent.

Paul OUIMET, Appellant, v. Harry KISER d/b/a RAK ESSO Service Station, Respondent.

Appeal Nos. 1, 2.

Supreme Court, Appellate Division, Fourth Department.

Dec. 17, 1976.

Mancuso & Ventre, Frank Ventre, Jr., Syracuse, for appellant Ouimet.

Costello, Cooney & Fearon, Peter N. Wells, Syracuse, for respondent Humble Oil.

Smith, Sovik, Terry, Kendrick, McAuliffe & Schwarzer, James F. Gaul, Syracuse, for respondent Kiser.

Before MOULE, J.P., and SIMONS, DILLON, GOLDMAN and WITMER, JJ.

MEMORANDUM:

Plaintiff Paul Ouimet was struck and injured by a bicycle, driven by 11-year-old David Rodman, at a gas station owned by Humble Oil & Refining Company, doing business as Esso (hereinafter Humble), and leased to Harry Kiser, doing business as RAK Esso Service Station (hereinafter Kiser).

This negligence action was commenced against David and his father, Jack Rodman, Humble and Kiser. At the close of the evidence, the trial court dismissed the complaint against Jack Rodman, Humble and Kiser. The jury then found that plaintiff had no cause of action against David Rodman. On appeal, plaintiff contends that the motions of Humble and Kiser for directed verdicts were erroneously granted.

A motion for a directed verdict requires the court to take that view of the evidence which is most favorable to the non-moving party (Bartkowiak v. St. Adalbert's R.C. Church, 40 A.D.2d 306, 309, 340 N.Y.S.2d 137, 141; Wessel v. Krop, 30 A.D.2d 764, 291 N.Y.S.2d 986; Prince v. City of New York, 21 A.D.2d 668, 250 N.Y.S.2d 107). Where different inferences may be drawn from undisputed facts, or where the facts are in dispute, or where the issue depends upon the credibility of witnesses, a motion for a directed verdict should be denied (Sadowski v. Long Island R.R. Co., 292 N.Y. 448, 454--455, 55 N.E.2d 497, 499--500).

The view of the evidence most favorable to plaintiff indicates that the jury could have found that Kiser knew that David Rodman had regularly used the gas station premises as a shortcut, as he was doing at the time of this accident, and that Kiser had never told him not to do so.

The jury may have concluded that Kiser's failure to warn David to stay off the premises unless he had business there constituted a breach of his duty to take reasonable precautions to protect his customers from injuries which could reasonably be anticipated (see Watson v. Adirondack Trailways, 45 A.D.2d 504, 359 N.Y.S.2d 912). Specifically, the jury may have found that Kiser knew that he could control the activities of third parties on his premises, that he had the opportunity to do so and that he was reasonably aware of the necessity for doing so (see Bartkowiak v. St. Adalbert's R.C. Church, supra, 40 A.D.2d p. 310, 340 N.Y.S.2d p. 142). The evidence most favorable to plaintiff could support an inference of negligence (see Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55; Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564).

Assuming that Kiser permitted or acquiesced in allowing neighborhood children to use his premises as a shortcut while riding their bicycles and that such conduct was negligent, a further question arises as to whether that negligence was a proximate cause of plaintiff...