Werner v. Sun Oil Co.

• Decision Date: 24 December 1984
• Citation: 106 A.D.2d 568,482 N.Y.S.2d 852
• Parties: Craig WERNER, Appellant, v. SUN OIL COMPANY, Defendant and Third-Party Plaintiff-Respondent; Wayne Pump Company, Defendant-Respondent. Mary MacDougall d/b/a Walt's Service Station, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 852

482 N.Y.S.2d 852

106 A.D.2d 568

Craig WERNER, Appellant, v. SUN OIL COMPANY, Defendant and Third-Party Plaintiff-Respondent Wayne Pump Company, Defendant-Respondent Mary MacDougall d/b/a Walt's Service Station, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 24, 1984.

Anthony V. Barbiero, P.C., Elmont, for appellant.

Curtis, Hart & Zaklukiewicz, Merrick (Reid A. Curtis and Wade T. Dempsy, Merrick, of counsel), for defendant third-party plaintiff-respondent.

Mulholland, Minion & Roe, Williston Park (Michael J. Roe and Vincent D. McNamara, Williston Park, of counsel), for defendant-respondent.

Deegan, Scibilia & Reardon, Mineola (Donald E. Deegan, Mineola, of counsel), for third-party defendant-respondent.

Before LAZER, J.P., and THOMPSON, WEINSTEIN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries predicated on negligence and strict products liability, plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County, dated September 8, 1982, as dismissed his complaint.

Judgment affirmed insofar as appealed from, without costs or disbursements.

This appeal emanates from an accident which occurred at approximately 9:00 or 10:00 P.M. on the night of January 13, 1978 when plaintiff attempted to clear away ice from the glass face or bezel of a gasoline dispensing pump. The pump was manufactured by defendant Wayne Pump Company, owned by defendant Sun Oil Company and leased to defendant MacDougall, doing business as Walt's Service Station. The subject pump, like the other six at that service station, had two windows covering the mechanism which displayed the gallonage dispensed and the cost per sale. Plaintiff's accident occurred when he exerted force to clear the windows of the gasoline pump he was using of a residue of ice and snow which had deposited on the pump in such manner as to obscure his vision of the reading. The window face shattered as plaintiff applied pressure to it, causing his hand to go into the pump. Plaintiff conceded that he had exerted a certain amount of pressure on the glass which had caused it to break.

Plaintiff had been working at Walt's Service Station during his senior year of high school. At the time of his accident, he had been employed by that station for approximately four and one-half months and had had no prior experience as a gas station attendant.

The trial court dismissed the complaint at the conclusion of plaintiff's case. We conclude that dismissal was an appropriate remedy inasmuch as plaintiff failed to establish a prima facie case although afforded a fair and complete opportunity to do so.

The evidence presented was not sufficient to make out a prima facie case in either strict products liability or negligence. Plaintiff did not show that there is an unreasonable risk that the window glass will break when ice is removed from its surface. On the contrary, there was testimony from plaintiff's consulting engineer that frost can certainly be removed from window glass without causing it to break. That expert offered no opinion as to whether or not the use of glass in the facings of gasoline dispensing pumps was reasonably safe. Moreover, plaintiff presented no evidence whatsoever regarding past breakages of pump windows.

With respect to plaintiff's own behavior, he admitted that he never attempted to use hot water to clear off the ice although it was readily available in the rest rooms of the station. Plaintiff also testified that he never went around to the other side of the pump to ascertain whether or not he could see through the transparent facing on that side. Nor did he think of looking for an ice scraper or a spray can of de-icing compound, although there was testimony that the service station did have spray de-icer for sale. Furthermore, the record is barren of any explanation as to why any of the other six pumps available for use at the service station could not have been used to service the customer upon whom plaintiff had been waiting at the time of his accident.

Nor do we subscribe to the argument advanced by our dissenting brother that the proffered testimony of one of plaintiff's expert witnesses, petroleum distributor George Wisser, was improperly curtailed on the ground that he was not qualified to testify concerning industry practices.

The question of whether a particular witness possesses sufficient skill, knowledge or experience to testify as an expert in a given field is subject to the discretion of the trial court and its determination will not be disturbed unless it is erroneous as a matter of law or constitutes an abuse of discretion (Tarlowe v. Metropolitan Ski Slopes, 28 N.Y.2d 410, 414, 322 N.Y.S.2d 665, 271 N.E.2d 515; Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 398-399, 34 N.E.2d 367; Molinari v. Conforti & Eisele, Inc., 54 A.D.2d 1113, 388 N.Y.S.2d 782). The record herein reveals no such error of law or abuse of discretion.

As a petroleum distributor, Wisser bought products from major and independent oil companies and distributed or sold the products to his own gas stations or to those of others. At the time of trial, Wisser enterprises owned or leased approximately 60 service stations. Wisser unequivocally admitted, however, that his stations utilized pumps which did not have transparent facings. Although the court afforded plaintiff the opportunity to establish a foundation for this expert witness, plaintiff failed to establish that he was familiar with anything beyond the limited scope of his own business. In essence, plaintiff failed to show that the pumps with which he was familiar were similar to the one on which plaintiff sustained his injury. Having thus failed to prove that Wisser was knowledgeable in the design or manufacture of gasoline pumps, so as to qualify him to testify on the matter of design defect, plaintiff's use of this witness was properly curtailed.

We have considered plaintiff's remaining contentions and find them to be without merit.

THOMPSON, WEINSTEIN and NIEHOFF, JJ., concur.

LAZER, J.P., dissents and votes to reverse the judgment appealed from and to grant a new trial, with the following memorandum.

LAZER, J.P. (dissenting).

This design defect case derives from a hand injury suffered by a 17-year-old gasoline station attendant when he attempted to clear ice from the face of a gasoline pump in order to read its meter during a snow storm. In the lawsuit that followed, plaintiff charged both the pump manufacturer, Wayne Pump Company, and the pump owner, Sun Oil Company, with negligence and strict products liability, alleging that the glass facing on the pump rendered it not reasonably safe for use. At the trial, plaintiff testified that the glass shattered when he tried to clear it by "a push" or "a swipe" but there was further testimony by the operator of the gasoline station that plaintiff had pounded on the glass. The trial also revealed that some of the pumps at the gasoline station were faced with glass and some with plexiglass, that it was difficult to distinguish between the two types of pumps, and that both types were still being manufactured. To establish that the Wayne pump was not reasonably safe, plaintiff offered the testimony of both an experienced operator of gasoline stations and an engineer who had performed tests on glass and plexiglass.

The jury never passed on the issues, however, because Trial Term dismissed the complaint at the conclusion of plaintiff's case. My colleagues have voted to affirm, concluding that "plaintiff failed to establish a prima facie case although afforded a fair and complete opportunity to do so". While it is true that plaintiff failed to establish a prima facie case, the record makes it apparent that he was not given a fair opportunity to do so because various evidentiary rulings severely curtailed the testimony of one of the proffered experts. Since I believe that some of these rulings were erroneous and prejudicial, I dissent and vote for reversal and a new trial.

The curtailed testimony was that of George Wisser, who had been engaged in the gasoline retailing and distribution business for over 50 years, currently owned or leased approximately 60 gasoline stations, distributed gasoline for Mobil, Citco and two unbranded companies to 40 other stations, and in the past had distributed for Texaco, Amoco and Chevron. Nevertheless, when plaintiff sought to question Wisser concerning his experience with the breakage of pump facings, the causes of breakage and problems generally encountered in clearing pump facings in bad weather, defendants objected that the pumps at Wisser's stations were of a different design than the Wayne pump and that Wisser was not qualified to testify concerning industry standards or practices relative to pump design.

In response to these objections, Trial Term initially ruled that Wisser was not qualified to testify concerning the safety of gasoline pumps with transparent facings because he had answered "No, sir" when asked on direct examination whether the pumps at his stations had transparent facings. Although it is quite apparent that this answer resulted from the question being either misheard or misunderstood, since--as plaintiff's counsel declared--it would be impossible to read numerals covered by an opaque facing, Trial Term never permitted the question to be put again, even though counsel stated that the response was obviously a mistake, made...