Glick v. Prince Italian Foods of Saugus, Inc.
25 Mass. App. Ct. 901
Mass. App. Ct.
1987
Check Treatment

*902The courts of Massachusetts have not previously addressed this specific fact pattern. However, a court in Florida stated: “[It is an] obvious fact that at times operators lose control over the forward progress and direction of their vehicles .... In a sense all such occurrences are foreseeable. They are not, however, incidents to ordinary operation of vehicles, and do not happen in the ordinary and normal course of events. ... [T]he consequences resulting therefrom are matters of chance and speculation. If . . . such occurrences are held to be foreseeable and therefore to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter.” Schatz v. 7-Eleven, Inc., 128 So.2d 901, 904 (Fla. Dist. Ct. App. 1961). Proximate cause does not require the particular act which caused the injury to have been foreseen, only that the general character and probability of the injury be foreseeable. Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 454 (1969). But the court will not hold the defendant liable for all possible injury no matter how remote or farfetched. The cause of the injury must be reasonably foreseeable. There is no duty owed when the risk which results in the plaintiff’s injury is not one which could be reasonably anticipated by the defendant. McGuig-gan v. New England Tel. & Tel., 398 Mass. 152, 157-161 (1986). See also Mayeur v. Time Saver, Inc., 484 So.2d 192, 195 (La. Ct. App. 1986).

Although negligence questions involving issues of what is reasonably foreseeable are ordinarily left to the jury, there are instances when the judge may decide them as matter of law, where no rational view of the evidence would warrant a finding of negligence. Luz v. Stop & Shop, Inc., 348 Mass. 198, 203-204 (1964). Mullins v. Pine Manor College, 389 Mass. 47, 56 (1983). A landowner or proprietor is not an insurer of the safety of his patrons. “The test is ‘foreseeable harm.’ . . . The underlying duty in every case, however, is to exercise the care which the circumstances reasonably require.” Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 642 (1961). Based on the evidence presented, there could be no reasonable difference of opinion as to the improbability of the incident which occurred.

The facts of the instant case are clearly distinguishable from those cases in other jurisdictions where a proprietor has been held liable for injuries to patrons caused by out-of-control motor vehicles. The restaurant here was not providing outside window service, Barker v. Wah Low, 19 Cal.App.3d 710 (1971), nor an outdoor seating area, Ray v. Cock Robin, Inc., 57 Ill.2d 19 (1974); Marquardt v. Cernocky, 18 Ill.App.2d 135 (1958). The driver of the vehicle causing injury to the patrons was not on the property to avail himself of the services of the defendant; he was unintentionally on the premises. There was no evidence produced of prior runaway vehicles causing damage to the restaurant building. Mullins v. Pine Manor College, supra *903at 56. Denton v. Park Hotel, Inc., 343 Mass. 524, 527 (1962). Bigbee v. Pacific Tel. & Tel. Co., 34 Cal.3d 49 (1983). The undisputed facts of this case make the injuries suffered by the plaintiffs the result of an incident which was not reasonably foreseeable by the defendant and thus not an occurrence from which it had a duty to protect its patrons.

Victor G. Dragone, Jr. for Eve Bartlett. Debra L. Smith for Ronald J. Click & another. Madeline M. Becker (Lawrence F. Boyle & Leonard H. Kesten with her) for the defendant.

Judgments affirmed.