Stone v. Williams
| Decision Date | 24 October 1983 |
| Citation | 97 A.D.2d 509,467 N.Y.S.2d 879 |
| Parties | Robert STONE, et al., Respondents, v. Kerry R. WILLIAMS, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
John P. Connors, P.C., Staten Island (William F. Larkin, New York City, of counsel), for appellants Kerry R. Williams and Chareen R. Stevens.
Metnick & Bernstein, P.C., New York City (Seymour H. Metnick, New York City, and Gary M. Carlton, Rego Park, of counsel), for appellants Meadville Corp., Merit Oil Corp., formerly known as Service Station Management Corp., Bunker Realty Corp. and Save Way Bay, Inc.
Cahn & Greenberg, New York City (Robert Cahn, New York City, of counsel), for respondents.
Before GIBBONS, J.P., and WEINSTEIN, BRACKEN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., defendants The Meadville Corp., Merit Oil Corporation, formerly known as Service Station Management Corp., Bunker Realty Corp. and Save Way Bay, Inc. appeal as limited by their brief, from so much of a judgment of the Supreme Court, Richmond County, entered March 24, 1982, as awarded plaintiffs judgment against them, upon a jury verdict, and defendants Kerry Williams and Chareen Stevens appeal, as limited by their brief, from so much of the same judgment as awarded damages to plaintiff Robert Stone as against them in the principal sum of $200,000.
Judgment reversed insofar as appealed from, on the law, without costs or disbursements, complaint as against The Meadville Corp., Merit Oil Corporation, Bunker Realty Corp. and Save Way Bay, Inc. dismissed, action as against Kerry Williams and Chareen Stevens severed, and new trial granted as to Williams and Stevens on the issue of plaintiff Robert Stone's damages only, unless within 30 days after service upon plaintiff Robert Stone of a copy of the order to be made hereon, with notice of entry, he shall serve and file in the office of the clerk of the Supreme Court, Richmond County, a written stipulation consenting to reduce the verdict in his favor as to damages to the principal sum of $100,000 and to entry of an amended judgment accordingly. In the event he so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.
Defendants The Meadville Corp., Merit Oil Corporation, Bunker Realty Corp. and Save Way Bay, Inc. owed no duty to their patrons to direct traffic within the confines of their service station (see Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019) nor may it be said that their failure to take precautionary measures was proven to have been a causative factor of the accident. There was no basis whatever in the evidence for finding that the accident was caused by anything other than the loss of control of the vehicle operated by defendant Williams when, as he admitted, the accelerator stuck. "The premises 'merely furnished the condition or occasion for the occurrence of the event rather than one of its causes' " (Margolin v. Friedman, 43 N.Y.2d 982, 983, 404 N.Y.S.2d 553, 375 N.E.2d 734, quoting from Sheehan v. City of New York, 40 N.Y.2d 496, 503, 387 N.Y.S.2d 92, 354 N.E.2d 832; see, also, 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, aff. 300 N.Y. 567, 89 N.E.2d 526; cf. Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666).
The verdict in favor of Robert Stone as against Williams and Stevens was excessive to the extent indicated.
GIBBONS, Justice Presiding, dissents and votes to affirm the judgment insofar as appealed from, with the following memorandum:
On April 3, 1977, at approximately 12:50 P.M., Robert Stone went to the Merit service station located at 951 Bay Street in Staten Island, to purchase gas. Nit Tanvejsilp, the assistant manager of the station, and one other employee were on duty at the time. The station was, on the date in question, bounded by four streets and contained four service islands. According to Mr. Tanvejsilp, at the time Mr. Stone's car was being serviced, there were about eight cars inside the gas station to purchase gas.
Because Mr. Stone had asked to have his car filled, Mr. Tanvejsilp set the hose on automatic and went to another island to service another car. He returned to Mr. Stone's car when he heard a click, indicating that the tank was filled, whereupon he removed the hose and stepped onto the island to replace it on the pump. At that moment Mr. Stone gave him a credit card and then proceeded to the rear of his car to determine whether the gas cap had been replaced securely. As he pulled down the license plate to check the gas cap, he was struck by the rear of another car driven by Kerry Williams. According to Mr. Stone, at no time prior to the accident did he hear or see the other car, nor did he hear a horn or brakes, nor did anyone call out to warn him of the moving vehicle. Mr. Tanvejsilp testified that he observed the Williams' car enter the station and then stop. He turned his face away from the Williams' car and then heard it "back up fast". He did not actually see the car hit Mr. Stone.
The jury assessed Mr. Stone's damages for personal injuries at $200,000. It apportioned liability among the defendants, holding that the Merit service station, constituting defendants The Meadville Corp., Merit Oil Corporation, Bunker Realty Corp. and Save Way Bay, Inc., was 20% responsible for the accident.
Citing Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019, the majority maintains that "[d]efendants The Meadville Corp., Merit Oil Corporation, Bunker Realty Corp. and Save Way Bay, Inc. owed no duty to their patrons to direct traffic within the confines of their service station". Pulka (supra ) is inapposite because there the issue was whether the operators of a parking garage had a duty to protect off-premises pedestrians on a neighboring sidewalk. As the Court of Appeals noted, the relationship of the garage to off-premises pedestrians was "somewhat tenuous", and that, therefore, the garage had no duty to protect such pedestrians from the tortious acts of its patrons (Pulka v. Edelman, supra, p. 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019). In the case at bar, the injured party was not off-premises. Being a patron on the Merit service station's property, plaintiff Robert Stone was entitled to that protection that is owed to any person who comes onto another's property--"reasonable care under the circumstances" (Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868). Every landowner bears such a duty to those on his property (Basso v. Miller, supra; Muallem v. City of New York, 82 A.D.2d 420, 441 N.Y.S.2d 834 affd. 56 N.Y.2d 866, 453 N.Y.S.2d 427, 438 N.E.2d 1142).
"Once the existence of a duty has been established, the inquiry turns to the separate question of the scope of that duty or the standard of care to which a defendant will be held in order to satisfy the duty he owes to the plaintiff" (Muallem v. City of New York, supra, 82 A.D.2d p. 424, 441 N.Y.S.2d 834). Generally, (Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520, n. 8, 429 N.Y.S.2d 606, 407 N.E.2d 451). Following these principles, it has been held that a gasoline service station owner or operator must take "reasonable precautions to protect his customers from injuries which could reasonably be anticipated" (Ouimet v. Humble Oil & Refining Co., 55 A.D.2d 855-856, 390 N.Y.S.2d 497).
I can perceive of no reason to except this case from the general rule that leaves it for the jury to determine, as questions of fact, the standard of care to which the Merit service station should be held and whether that standard has been violated or not. The mere fact that only two employees were on duty when Mr. Stone was injured, at a very busy time of day, might be taken as violative of a standard which would dictate that enough attendants be on hand so as to minimize the number of cars waiting to be serviced and to control the traffic in the station. Moreover, there was testimony, from Mr. Tanvejsilp and Lloyd Cornelius, the manager of the station, that according to company manuals, a customer should never be allowed to back up his car to a pump, and one car should be serviced at a time. A one page document entitled "Company Safety Rules", which is posted in each station, was admitted into evidence. It states in pertinent part:
It is well recognized that the regulations adopted by an employer may be some evidence of the standard of care required and, thus, of the negligent nature of any act or omission violating those regulations (2 Harper and James, The Law of Torts, § 17.3, p. 981, n. 17; 65 C.J.S., Negligence, § 16, p. 601; see Wood v. American Locomotive Co., 250 App.Div. 816, 294 N.Y.S. 200; cf. Trimarco v. Klein, 56 N.Y.2d 98, 105-106, 451 N.Y.S.2d 52, 436 N.E.2d 502). The evidence most favorable to plaintiffs supports a finding that the Merit service station failed to adequately control the traffic congestion and movement at its station, in violation of its own regulations and in violation of a reasonable standard of care. That only two employees were on duty at the time and that Mr. Tanvejsilp admittedly saw the Williams car come into the station but then ignored it are...
To continue reading
Request your trial
- Carver Fed. Sav. Bank v. Shaker Gardens, Inc.
-
Di Ponzio v. Riordan
...continue to argue on appeal that a gas station has no duty to control the movement of its patrons' automobiles, citing Stone v. Williams, 97 A.D.2d 509, 467 N.Y.S.2d 879, affd 64 N.Y.2d 639, 485 N.Y.S.2d 42, 474 N.E.2d 250. However, as noted by the court, when the Court of Appeals affirmed ......
- State v. Carey Resources, Inc.
-
Mixon v. TBV, Inc.
...N.Y.S.2d 42, 474 N.E.2d 250. In Stone, the Court of Appeals had before it an appeal from an order of this Court ( see Stone v. Williams, 97 A.D.2d 509, 467 N.Y.S.2d 879) involving the alleged negligence of multiple tortfeasors pertaining to an accident at a gas station. The plaintiff was in......