Santoleri v. Knightly

• Decision Date: 12 September 1997
• Citation: 663 N.Y.S.2d 505,174 Misc.2d 339
• Parties: , 1997 N.Y. Slip Op. 97,549 Giorgio SANTOLERI, et al., Plaintiffs, v. Joyce KNIGHTLY et al., Defendants.
• Court: New York Supreme Court

Page 505

663 N.Y.S.2d 505

174 Misc.2d 339, 1997 N.Y. Slip Op. 97,549

Giorgio SANTOLERI, et al., Plaintiffs, v. Joyce KNIGHTLY et al., Defendants.

Supreme Court, Monroe County.

Sept. 12, 1997.

David B. Mahoney, Rochester, for defendants.

William H. Farr, Rochester, for plaintiffs.

KENNETH R. FISHER, Justice.

Defendant, Profetta Funeral Chapel, Inc., moves to dismiss plaintiffs' complaint seeking to hold it liable in negligence for injuries plaintiff sustained on the abutting public highway from a passing motorist as she was crossing the highway to attend a funeral. According to the complaint, plaintiffs drove to Profetta's located on Empire Blvd., to attend a funeral where the parking lot was full. An employee of Profetta instructed plaintiffs to park across the street in another parking lot which was not owned or operated by Profetta. After parking their vehicle, they crossed the public street to attend the funeral. As they crossed Empire Blvd., an automobile driven by defendant, Joyce Knightly, struck plaintiffs Bruno Santoleri and Gabriella Santoleri, causing personal injuries to both. Plaintiff, Giorgio Santoleri, the husband of Gabriella, seeks to recover for loss of consortium.

The funeral home moves to dismiss the complaint pursuant to CPLR 3211(a)(7), and contends that it owed no duty to plaintiffs for off premises injuries inflicted on the public highway. In support of its application, defendant cites Obiechina v. Colleges of the Seneca, 171 Misc.2d 56, 652 N.Y.S.2d 702 (Sup.Ct.Ontario Co.1996) for the proposition that no legal duty is owed by property owners to individuals who are struck while crossing a street abutting defendant's property. Other than Obiechina, there does not appear to be a case in New York addressing this situation. See 4C Warren's New York Negligence, § 88.01[4], at 85-86 (3d ed. 1991) (setting forth only the position of the A.L.I., Restatement (Second) of Torts, § 349, that "[a] possessor of land over which there is a public highway ... is not subject to liability for physical harm caused to travelers upon the highway or persons lawfully using the way by his failure to exercise reasonable care (a) to maintain the highway or way in safe condition for their use, or (b) to warn them of dangerous conditions in the way which, although not created by him, are known to him and which they neither know nor are likely to discover").

In Obiechina, the plaintiff was a student at defendant's college in Geneva. A municipal highway ran through the center of campus. Defendant owned property on both sides of the highway. While crossing the street to attend classes, plaintiff was struck by an automobile causing personal injuries. Plaintiff sued the college claiming that the college had a duty to plaintiff "to install, ... [or] to request the City of Geneva to install, appropriate pedestrian crosswalks." Obiechina, 171 Misc.2d at 57, 652 N.Y.S.2d 702. Relying upon cases in other jurisdictions which "have declined to recognize a duty of care, owed by "Liability for negligence may result only from the breach of a duty running between a tortfeasor and the injured party." Kimmell v. Schaefer, 89 N.Y.2d 257, 263, 652 N.Y.S.2d 715, 675 N.E.2d 450 (1996). "Although the existence of a duty is an issue of law for the courts [citation omitted], once the nature of the duty has been determined as a matter of law, whether a particular defendant owes a duty to a particular plaintiff is a question of fact." Id., 89 N.Y.2d at 263, 652 N.Y.S.2d 715, 675 N.E.2d 450. This case appears to be similar to the New Jersey case sought to be distinguished in Obiechina, 171 Misc.2d at 60, 652 N.Y.S.2d 702 (discussing Mulraney v. Auletto's Catering, supra). In Mulraney, the court clearly embraced a duty owed by an establishment to undertake "measures to protect its customers from a transient dangerous condition created by Auletto's own business operation, specifically, the conduct of a large function which it knew or should have known would involve some patrons parking on the opposite side of a poorly illuminated county highway that had no crossing for pedestrians." Mulraney, 293 N.J.Super. at 323, 680 A.2d at 797. The court found section 349 of the Restatement (Second) of Torts inapposite because the claim was "not based upon an alleged unsafe condition of the highway but rather upon a transient dangerous condition resulting from Auletto's conduct of a special function at its premises." Supra, 293 N.J.Super. at 323, 680 A.2d at 797 (adding that the plaintiff's decedent in that case was not the traveler or lawful user of the highway contemplated by § 349, "but rather [was] Auletto's business invitee"). Mulraney has subsequently been endorsed by New Jersey's highest court. Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 518-19, 688 A.2d 1018, 1022 (1997).

owners or occupiers to users of their property for injuries suffered while crossing public thoroughfares, adjacent to such property[,]" id., 171 Misc.2d at 59, 652 N.Y.S.2d 702 (collecting cases at pp. 59-60), the court dismissed the claim, but limited its holding to the claim stated by observing that the landowner's duty of care did not extend "to 'the system of vehicular and pedestrian control established by the responsible governmental agency.' " Id., 171 Misc.2d at 60, 652 N.Y.S.2d 702 (quoting Mulraney v. Auletto's Catering, 293 N.J.Super. 315, 322-23, 680 A.2d 793, 797 (App.Div.1996)). In this case, however, plaintiff does not seek to impose liability on the funeral home for a failure by it to request the government to install a system of traffic and pedestrian control which would accommodate its well attended funerals or other functions. Instead, plaintiff asserts that he was specifically instructed to use the parking lot across the roadway, and that the funeral home failed to exercise care by itself ensuring safe passageway onto its premises....