De Sessa v. City of White Plains

• Decision Date: 26 July 1961
• Citation: 30 Misc.2d 817,219 N.Y.S.2d 190
• Parties: Ezio DE SESSA, Plaintiff, v. CITY OF WHITE PLAINS, Ida Gaynor, Morris Wolff, Joseph Wolff, McFadden Express Co., Harold Cannaughtan, Jr., Thom McAn, Inc., Defendants.
• Court: New York Supreme Court

Page 190

219 N.Y.S.2d 190

30 Misc.2d 817

Ezio DE SESSA, Plaintiff, v. CITY OF WHITE PLAINS, Ida Gaynor, Morris Wolff, Joseph Wolff, McFadden Express Co., Harold Cannaughtan Jr., Thom McAn, Inc., Defendants.

Supreme Court, Westchester County.

July 26, 1961.

Smith, Ranscht & Croake, White Plains (Thomas F. Croake, and William F. Ranscht, Jr., White Plains, of counsel), for plaintiff.

Clark, Gagliardi, Gallagher & Smyth, White Plains (Lee P. Gagliardi, and James F. Donohue, White Plains, of counsel), for defendant, City of White Plains.

Allen M. Taylor, New York City (Jeremiah G. Mahony, New York City, of counsel), for defendants, Morris Wolff, and Joseph Wolff.

John P. Smith, New York City (Anthony J. Caputo, New York City, of counsel), for defendants, McFadden Express Co. and Harold Cannaughton, Jr.

Sidney Voletsky, Brooklyn (Charles E. Howell, New York City, of counsel), for defendant, Thom McAn, Inc.

JAMES D. HOPKINS, Justice.

The plaintiff was walking on March 18, 1959, along the sidewalk on Main Street in the City of White Plains. The defendant Cannaughtan was the driver of a trailer truck owned by the defendant McFadden Express Co. Cannaughtan was backing the trailer truck into a parked position at the curb so as to unload a shipment of shoes and make delivery to a store operated by the defendant Thom McAn, Inc. An employee of that store had been assigned by the manager to assist Cannaughtan by guiding him in parking the vehicle. The defendants Wolff owned a store next to Thom McAn, and a drain covered by a metal grate ran across the sidewalk, discharging water collected from the roof of the Wolff store. The curb and sidewalk at the point of the drain were broken and in part missing; the metal grate was loose. The left rear wheel of the trailer struck and mounted the end of the grate at the curb, catapulting the other end of the grate at the store line into the air; the plaintiff, walking on the sidewalk near the Wolff store, was hit by the grate and thrown off his feet, sustaining injuries for which he seeks damages in this action.

Prior to the trial the action was discontinued as to the defendant Gaynor, since she had no interest in any store served by the drain. The case was tried by the court without a jury under a stipulation of the parties. At the trial, by consent of the plaintiff, the complaint was dismissed as to the defendant City of White Plains. In the pleadings of certain of the defendants' cross-complaints are alleged against certain other co-defendants. The court reserved decision at the end of the trial on the motions for judgment made on behalf of all the parties.

The foundation of liability for negligent conduct must be analyzed to meet the question of whether all, or some, or none, of the defendants must respond to the plaintiff for his damages. The plaintiff has joined the defendants on the theory that their concurrent negligence caused his injuries. If, indeed all of them were negligent in their relation to the plaintiff, and their negligence was the legal cause of plaintiff's injuries, the defendants would be jointly liable in damages (Slater v. Mersereau, 64 N.Y. 138; Sider v. General Electric Co., 203 App.Div 443, 448, 197 N.Y.S. 98, 102; Barnes v. Masterson, 38 App.Div. 612, 614, 56 N.Y.S. 939, 941; Kaszovitz v. Trustees of Sailor's Snug Harbor, 127 Misc. 818, 216 N.Y.S. 745; Prosser, 'Joint Torts and Several Liability', 25 California Law Review 413, 432-433) . 'Although they acted independently of each other, they did act at the same time in causing the damages, etc., each contributing towards it, and although the act of each, alone and of itself, might not have caused the entire injury, under the circumstances presented, there is no good reason why each should not be liable for the damages caused by the different acts of all.' Slater v. Mersereau, supra, 64 N.Y. 138, 146.

Our task is, accordingly, to determine whether the conduct of each defendant toward the plaintiff constituted actionable negligence. In the setting of this case, the rare and unusual result of a combination of forces, we must search the doctrine of negligence to its limits; we are bound, nevertheless, by those limits, no matter how attractive metaphysical speculation might be. 'The lawyer cannot afford to adventure himself with philosophies in the logical and metaphysical controversies that beset the idea of cause.' Pollock, Torts (11th ed.), 36. ¹

In New York, at least, the bounds of actionable negligence were set in Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253. Judge Cardozo, speaking for the majority, found that negligence is relative between individuals. 'If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity with reference to some one else.' Palsgraf v. Long Island R. R. Co., supra, 248 N.Y. 339, 342, 162 N.E. 99, 59 A.L.R. 1253. In his view, a negligent defendant is liable only in the event that the plaintiff's injury is the result of what the defendant could have reasonably foreseen to have been within the scope of the risk created by the act. Judge Andrews, speaking for the minority, held that once the defendant's negligence is established, he is responsible for all of its effects, whether foreseeable or not, following the rule stated by the English court in Matter of Polemis, (1921) 3 K.B. 560. ²

Although Palsgraf was decided by a 4-3 vote by the Court of Appeals, it has been dutifully respected by later cases in New York (e. g., Babington v. Yellow Taxi Corporation, 250 N.Y. 14, 164 N.E. 726, 61 A.L.R. 1354; Lane v. City of Buffalo, 232 App.Div. 334, 338, 250 N.Y.S. 579, 583; Luce v. Hartman, 5 A.D.2d 19, 22, 168 N.Y.S.2d 501, 505), and the view it represents prevails in most of the states (see James and Perry, 'Legal Cause' 60 Yale Law Journal 761, 787). ³ Recently, morever, the opposing rule of Polemis was said not to 'be regarded as good law' by the Privy Council in England (Overseas Tank Ship (U.K.) Ltd. v. Morts Dock & Engineering Co., (1961) 2 Weekly L.R. 126, 138 (P. C.)). ⁴

We approach the question of each defendants' liability therefore, with regard to the tests espoused in Palsgraf: (1) did the defendant breach a duty owed to the plaintiff; and (2) could the defendant have reasonably foreseen the consequence of injury to the plaintiff following the breach of the duty. In applying the tests, we must also recall the warning stated in O'Neill v. City of Port Jervis, 253 N.Y. 423, 433, 171 N.E. 694, 697: 'Legal or proximate cause is always dependent upon the facts of a particular case, and it is for this reason that words are beyond definition or conclusive explanation. Very often it is confused with the preliminary question whether there is any negligence at all.' ⁵

I The Negligence of the Defendants Wolff

The defendants Wolff owned the store which was served by the drain crossing the sidewalk. It is familiar law that the owners of premises benefitted by the use of a public sidewalk for a special purpose, such as for a drain, must inspect it and maintain it in a reasonably safe condition (Trustees of Village of Canandaigua v. Foster, 156 N.Y. 354, 50 N.E. 971, 41 L.R.A. 554; Olivia v. Gouze, 285 App.Div. 762, 140 N.Y.S.2d 438, affirmed 1 N.Y.2d 811, 153 N.Y.S .2d 71; Herman v. Chal Associates, 262 App.Div. 841, 29 N.Y.S.2d 508, affirmed 287 N.Y. 720, 39 N.E.2d 935; Wylie v. City of New York, 286 App.Div. 720, 146 N.Y.S.2d 207). 'But whoever, even by due permission, cuts a hole in the sidewalk for the benefit of his adjoining property must use reasonable care to protect the public from danger on account thereof. Reasonable care requires that he should provide a proper covering, inspect it from time to time and repair it when necessary, as otherwise passersby, for whose benefit the sidewalk is maintained, may be injured.' Trustees of Village of Canandaigua v. Foster, supra, 156 N.Y. 354, 361, 50 N.E. 971, 972.

Here the evidence is that the sidewalk and curb were broken around the drain. An inspector of the City of White Plains testified that a part of the curb one foot long by five inches high was missing, as well as a part of the sidewalk six inches wide and one foot long, at the point where the drain met the curb. The conditions were such as to warrant the inference that they existed for considerable time prior to the occurrence whereby the plaintiff was injured (cf. Becker v. Liscio, 223 App.Div. 698, 229 N.Y.S. 361; Adams v. Misena Realty Co., Inc., 239 App.Div. 633, 267 N.Y.S. 869). In addition, the defendant Joseph Wolff, who testified that he was in charge of the property on behalf of the owners, said that he visited the property on rare occasions, and could not tell when he had last observed the drain, thus indicating that he had not met the duty of reasonable inspection cast on him. Although he also said that he had no knowledge concerning the defective condition of the drain, a fair conclusion of constructive notice under all the circumstances is justified with respect to the defendants Wolff, since the condition of the sidewalk, curb, and drain was patent (Sapego v. Village of Mount Kisco, 260 App.Div. 931, 23 N.Y.S.2d 32, affirmed 286 N.Y. 599, 35 N.E.2d 939; Liwer v. Roxy Cleaners & Dyers Co., Inc., 6 A.D.2d 931, 175 N.Y.S.2d 724; Napoli v. City of New York, City Ct., 144 N.Y.S.2d 110, 114). As plaintiff, a pedestrian using the sidewalk, was within the class of persons to whom the defendant owners owed a duty of reasonable care, they are liable to him for such injuries which he suffered and which were reasonably foreseeable as a result of the breach of the duty.

Given the loose condition of the grate covering the drain and the broken curb and sidewalk about it, it was within the orbit of...