Pulka v. Edelman

• Court: New York Court of Appeals
• Writing for the Court: COOKE; GABRIELLI, WACHTLER and FUCHSBERG; BREITEL, C.J., and JASEN and JONES, JJ., concur with COOKE
• Citation: 358 N.E.2d 1019,390 N.Y.S.2d 393,40 N.Y.2d 781
• Decision Date: 02 December 1976
• Parties: , 358 N.E.2d 1019 Shaul PULKA, Respondent, v. Lillian EDELMAN et al., Defendants, and Ace Garage, Appellant.

Page 393

390 N.Y.S.2d 393 40 N.Y.2d 781, 358 N.E.2d 1019 Shaul PULKA, Respondent,
v.
Lillian EDELMAN et al., Defendants,
and
Ace Garage, Appellant. Court of Appeals of New York. Dec. 2, 1976.

Page 394

Abraham Shapiro and A. Allen Stanger, New York City, for appellant.

Joseph Kelner and Gilbert S. Glotzer, New York City, for respondent.

COOKE, Judge.

We determine here whether the operators of a parking garage are liable in negligence for an injury to a pedestrian struck by a car while it was being driven out of the garage and across an adjacent sidewalk, not by a garage employee, but by a patron of the garage.

After trial in the Civil Court of the City of New York, a verdict was returned in favor of plaintiff against the owner and operator of the car and the operators of the garage, but not against a truck which struck the plaintiff after he was struck by the car. The jury apportioned 75% Liability to the car and 25% Liability to the garage. Upon motion, the Trial Judge set aside the verdict against the garage on the basis of his conclusion 'that the negligence of the Garage was not a proximate cause nor a concurring cause of the injuries sustained by the plaintiff herein and that the sole proximate cause of the injuries was the failure of (the driver) to give the plaintiff the right of way as required by § 1173 V. & T. Law.'

Appellate Term reversed and reinstated the verdict in an opinion which stated that since there was evidence in the record from which it could be found that the manner of operation of the garage was a source of potential injury to pedestrians and it was reasonably foreseeable that injuries to such pedestrians would be inflicted by vehicles operated by third persons, the issue was 'at the very least' a question of fact for the jury. The Appellate Division affirmed Appellate Term, without opinion, with one dissent. We reverse.

We agree that the garage is not liable in negligence for plaintiff's injuries. As pointed out in the Appellate Division dissent, as well as by the Trial Judge, attempts by plaintiffs in similar circumstances to show a causal connection between the operation of the premises and the negligent operation of the vehicle have been rejected (see, e.g., Weber v. City of New York, 24 A.D.2d 618, 262 N.Y.S.2d 222, affd. 17 N.Y.2d 790, 270 N.Y.S.2d 759, 217 N.E.2d 839; Tauraso v. Texas Co., 275 App.Div. 856, 89 N.Y.S.2d 146, affd. 300 N.Y. 567, 89 N.E.2d 526). We need not, however, decide the case on that basis, because, regardless of proximate cause, a garage owes no duty to pedestrians in this type of case.

It is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff (Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 342, 162 N.E. 99,

Page 395

101; see, also, 1 Shearman and Redfield, Negligence (Rev. ed.), § 4, pp. 10--11). In the absence of duty, there is no breach and without a breach there is no liability (Kimbar v. Estis, 1 N.Y.2d 399, 405, 153 N.Y.S.2d 197, 201, 135 N.E.2d 708, 710). This requirement is expressed in the often-quoted remark: 'Negligence in the air, so to speak, will not do' (Pollock, Torts (13th ed.), p. 468). The question of duty, however, is best expressed as 'whether the plaintiff's interests are entitled to legal protection against the defendant's conduct' (Prosser, Torts (4th ed.), § 53, p. 325).

In the case before us, the fundamental issue is whether the defendant garage owed a duty to the plaintiff. It is undisputed that the driver of the car owed a duty to the plaintiff, if not because of his operation of the car, then surely from the statute which at that time provided: 'The driver of a vehicle within a business or residence district emerging from an alley, driveway, or building shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across any alleyway or driveway, and shall yield the right of way to any pedestrian as may be necessary to avoid collision, and upon entering the roadway shall yield the right of way to all vehicles approaching on said roadway.' (L.1959, ch. 775.) ^* Since the statute specifies 'the driver', it is clear that any duty owed to pedestrians by the garage is not to be found therein.

The question then is whether, since there was evidence that patrons of the garage often drove their cars out of the garage and across the sidewalk without stopping, there arose a duty on the part of the garage to take measures to prevent or discourage this practice. Stated another way, the question is whether this garage, or any garage, has a duty to control the conduct of its patrons for the protection of off-premises pedestrians.

Commentators have pointed out that the duty to control others arises only in the following relationships: (1) '(t)he relationship between the defendant and the person who threatens the harm to the third person may be such as to require the defendant to attempt to control the other's conduct' or (2) 'there may be a relationship between the defendant and the person exposed to harm which requires the defendant to afford protection from certain dangers including the conduct of others' (Harper & Kime, Duty to Control the Conduct of Another, 43 Yale L.J. 886, 887--888). While either of the...