Pizzimenti v. HennPizzimenti v. Henn
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmеd without costs.
Memorandum: Marie Pizzimenti (plaintiff) was injured when she was struck by a vehicle driven by defеndant Cathie Henn and owned by defendant David Henn as plaintiff exited a Wilson Farms convenience store on Pine Avenue in Niagara Falls. Plaintiff‘s mother, Catherine A. Ricotta, was struck аnd killed by the same vehicle. Cathie Henn ultimately pleaded guilty to vehicular manslaughter in the second degree, admitting that she was intoxicated at the time of the incident. Plaintiffs commenced this action against the Henns, as well as defendants Tops Markets, Inc., doing business аs Wilson Farms, Nathan Benderson, Ronald Benderson and David H. Baldauf, as trustees under a trust agreement dated September 22, 1993, known as the Randall Benderson 1993-1 Trust, and Benderson Development Company, Inc. (collectively, Tops). Plaintiffs contend that Tops failed to provide a safe method of ingress and egress to the store and that Tops failed to take adequate precautions to prevent motor vehicles from coming into contact with pedestrians.
Tops moved for summary judgment dismissing the complaints against it. In support of thе motion Tops submitted, inter alia, excerpts from various deposition transcripts estаblishing that David Henn had run numerous errands with Cathie Henn and their children prior to stopping at the Wilson Farms store. While David was in the store, Cathie apparently turned the vehicle on, leaned over from the passenger seat and accelerated the vehicle across the parking lot into the front door of the store, striking plaintiff and Ricotta.
In opрosition to the motion, plaintiffs submitted the deposition testimony of various employeеs of Wilson Farms in the Western New York region, who testified that there were other incidents of vehicles driving into the front or side of other Wilson Farms stores. None of those incidents involved this store. Plaintiffs also submitted an affidavit of a professional engineer, who averred that thе incident could have been prevented by the placement of bollards.
In Grandy v Bavaro (134 AD2d 957 [1987], lv denied 71 NY2d 802 [1988]), we held that, although owners and lessees of conveniencе stores have a duty to use reasonable care under the circumstances, that duty did nоt require them to “guard against the unforeseeable risk that a car driven by an inexperienced driver will jump the curb and strike a pedestrian” (id. at 958). We further held that, even if there was a duty to demarcate the sidewalk from the parking lot and warn drivers and pedestrians, the failure to do so “was not a proximate cause of the accident. The accident occurred, not because of the driver‘s inability to perceive the sidewalk or tо recognize the dangers of driving over it, but because the driver was unable to control hеr vehicle. Thus, the cause of the accident is completely unrelated to the acts of negligence alleged by plaintiff” (id.). We see no reason to deviate from that holding in this instance.
Present—Green, J.P., Scudder, Gorski, Martoche and Pine, JJ.