Sweeney v. Bruckner Plaza AssociatesSweeney v. Bruckner Plaza Associates
Defendants’ motion for a directed verdict on the ground that plaintiff failed to make out a prima facie case on his claims for trespass to chattel and negligence was improperly granted. Plaintiff‘s evidence was sufficient to show that defendants lacked authority to remove plaintiff‘s vehicle (see
The issue of “[p]roximate cause is a question of fact for the jury where varying inferences are possible.” (Rose v Brown & Williamson Tobacco Corp., 53 AD3d 80, 106 [2008] [internal quotation marks omitted].) Violation of the Administrative Code or the Rules of the City of New York constitutes some evidence of negligence (Cruz v City of New York, 13 AD3d 254 [2004]). “As a general rule, the question of proximate cause is to be decided by the finder of fact, once negligence has been shown” (Equitable Life Assur. Socy. of U.S. v Nico Constr. Co., 245 AD2d 194, 196 [1997]). In determining proximate cause where there is an intervening act, liability turns on whether the intervening act was a foreseeable consequence of the defendant‘s negligence, and, as such, is generally a question for the finder of fact (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]).
Defendants contend that plaintiff‘s retrieval of his vehicle was an intervening act. Whether this was a “normal or foresee
A directed verdict is only appropriate where there is no rational process that would lead the trier of fact to find for the nonmoving party (McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 210 [2004]). In considering the motion “the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). We do not find it unreasonable as a matter of law for plaintiff to brave the cold for what he thought was only a few blocks, especially since his specialized, unfoldable, motorized wheelchair and his physical condition made it extremely difficult for him to travel in anything other than a customized vehicle. Thus, it cannot be said as a matter of law that plaintiff‘s actions were so extraordinary as to break the causual nexus between defendants’ actions and plaintiff‘s resultant injuries (Derdiarian, 51 NY2d at 315). Concur—Saxe, J.P., Acosta and DeGrasse, JJ.
Catterson and McGuire, JJ., dissent in a memorandum by McGuire, J., as follows: I disagree with the majority that Supreme Court erred in granting defendants’ separate motions at the close of plaintiff‘s case for dismissal of the causes of action for trespass to chattel and negligence based on events that occurred on December 23, 1997. Accordingly, I respectfully dissent in part.
On December 23, 1997, plaintiff, his teenage brother and a six-year-old boy (whose legal guardian was plaintiff) drove to a shopping center owned by defendant Bruckner. Plaintiff was a wheelchair-bound quadriplegic who drove his specially-equipped, handicapped accessible van to the shopping center. The van had neither handicapped license plates (see
After plaintiff and his companions exited the store at 6:45 p.m., they returned to the parking lot to find the van missing. The group searched the lot for the van for approximately 15 minutes, but did not find it. At approximately 7:00 p.m., plaintiff, using his cell phone, called “911” to report the van stolen. The police dispatcher plaintiff spoke to told him to wait at the shopping center for police officers to arrive.
Shortly after plaintiff called “911,” a woman in the parking lot told plaintiff that his van had been towed and pointed to a tow truck in the lot that the woman believed had towed the van. Plaintiff talked to the driver of the tow truck, who apparently worked for defendant Zerega Recovery Corp.; the driver told plaintiff that he had towed the van and he refused to bring the van back to the shopping center. The tow truck driver, however, indicated to plaintiff that Zerega‘s storage lot was two blocks from the shopping center. Neither plaintiff nor his brother saw any sign in the parking lot indicating the name, address and telephone number of the tow operator of the lot. Following this conversation with the tow truck driver, plaintiff, at approximately 7:25 p.m., called “911” to inform the police that the van had not been stolen but towed and that he wanted the police to assist him in getting his van back. Again, the police dispatcher told plaintiff to wait at the shopping center for police officers to arrive.
At approximately 7:40 p.m., plaintiff and his companions decided to leave the shopping center and travel on the sidewalks to retrieve the van. Although the temperature was very cold, plaintiff did not have a jacket because he had left it in the van. The distance from the shopping center to Zerega‘s lot ultimately proved to be, in plaintiff‘s estimation, approximately 1.2 miles. The sidewalks were, in plaintiff‘s opinion, “messed up“; the sidewalks had many “bumps, cracks, holes” and other depressions that “[a]ffected [plaintiff] a lot[, caused him a] lot of pain . . . [and made him] very uncomfortable.” Plaintiff wheeled himself most of the way between the shopping center and Zerega‘s lot, but his brother assisted him part of the time. When they reached Zerega‘s lot, a Zerega employee returned the van to plaintiff without charge.
Plaintiff commenced this action against Bruckner and Zerega
At trial, plaintiff‘s negligence cause of action was based on defendants’ alleged failure to comply with
At the close of plaintiff‘s case, defendants separately moved
A motion for judgment during trial pursuant to
“The concept of proximate cause, or more appropriately legal cause, has proven to be an elusive one, incapable of being precisely defined to cover all situations. This is, in part, because the concept stems from policy considerations that serve to place manageable limits upon the liability that flows from negligent conduct. Depending upon the nature of the case, a variety of factors may be relevant in assessing legal cause. Given the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established. To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant‘s negligence was a substantial cause of the events which produced the injury” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314-315 [1980] [citations omitted]).
In ascertaining whether a defendant‘s conduct was a substantial factor in causing the events that produced a plaintiff‘s injuries,
The absence of a sign complying with
Even assuming that a material issue of fact existed regarding whether defendants’ alleged negligence was a substantial factor in causing plaintiff‘s injury, the negligence cause of action was properly dismissed. When the intervening act of a plaintiff contributes to his injuries, liability can only be imposed on the defendant if the plaintiff‘s act was a foreseeable consequence of the situation created by the defendant‘s alleged negligence (Boltax v Joy Day Camp, 67 NY2d 617, 619 [1986]; see Kriz v Schum, 75 NY2d 25, 36 [1989]). Here, plaintiff, after alerting the police of his predicament and being told to wait at the shopping center for police officers to arrive, left the safety of the shopping center to travel an uncertain distance in his wheelchair over public sidewalks on a cold winter‘s evening without a jacket. In my view, plaintiff‘s reaction to the particular situation he was confronted with was unreasonable and thus was not a foreseeable consequence of defendants’ failure to post a sign (see Miecznikowski v Robida, 278 AD2d 793 [2000], lv denied 96 NY2d 709 [2001]).
Instructive on this score is Chang-Lei Cheng v Metropolitan Transp. Auth. (213 AD2d 581 [1995]). In Cheng, plaintiff‘s decedent was a passenger on a Long Island Rail Road train heading from New York City to the Town of Huntington. Due to a fire in the wheels of the last car of the train, the train stopped approximately one mile west of the Huntington station. While other passengers waiting for service to be restored remained on the train or outside of the train at the site where it stopped, 50 to 100 of the passengers, including plaintiff‘s decedent, walked on the tracks to the station. Plaintiff‘s decedent subsequently suffered a heart attack and died. Plaintiff commenced an action against, among others, the Metropolitan Transportation Authority (MTA), claiming that, as a result of the MTA‘s alleged negligence in operating and maintaining the train, the decedent walked to the station instead of being dropped off there by the train and, in the course of walking, suffered the heart attack due to the physical exertion of the walk. The Second Depart
I appreciate that the question of proximate cause is generally a question of fact for a jury (see Derdiarian, 51 NY2d at 312), a point the majority repeatedly stresses. However, where, as here, “the evidence as to the cause of the accident which injured plaintiff is undisputed, the question as to whether any act or omission of the defendant was a proximate cause thereof is one for the court and not for the jury” (Rivera v City of New York, 11 NY2d 856, 857 [1962]; see Sheehan v City of New York, 40 NY2d 496, 502 [1976]). In my view, the evidence at trial regarding the cause of plaintiff‘s injuries was clear. Plaintiff‘s injuries were caused by: (1) the particular condition of the public sidewalks that plaintiff traveled over, (2) the physical labor plaintiff exerted in wheeling himself over those public sidewalks, and (3) the cold temperatures to which plaintiff was exposed because of his decision to retrieve the van from Zerega‘s lot and because he was not wearing a jacket. Thus, the question of whether defendants’ alleged negligence was a proximate cause of plaintiff‘s injuries was properly resolved as a matter of law by Supreme Court.
With respect to the cause of action for trespass to chattel, defendants raise an interesting issue—whether a plaintiff may recover damages for personal injuries under that cause of action. To be sure, plaintiff does not seek to recover for property damage, i.e., damage to the van, under his cause of action for trespass to chattel; rather, plaintiff seeks to recover damages for personal injuries he sustained as a result of his trip from the shopping center to Zerega‘s lot to retrieve the van.
To recover damages under a cause of action for trespass to chattel, a plaintiff must demonstrate that he or she sustained an “actual injury” as a result of the defendant‘s tortious conduct (see Kronos, Inc. v AVX Corp., 81 NY2d 90, 95 [1993]). Generally, the “actual injury” element is satisfied by evidence that the chattel was damaged as a result of the tortious conduct or that the plaintiff was deprived of the use of the chattel for some period of time. Section 218 of the Restatement (Second) of Torts states that “One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if, . . . (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.” The comment to section 218 (d) states that
I need not, however, decide this novel issue. Even assuming that damages for personal injuries are recoverable under a cause of action for trespass to chattel, for the reasons discussed above, plaintiff‘s injuries did not “proximately result[ ]” from defendants’ alleged tortious conduct (2 NY PJI2d 3:9, at 98). Thus, dismissal of the trespass to chattel cause of action was appropriate.
I agree with the majority‘s tacit conclusion that Supreme Court erred in granting Zerega‘s pretrial motion in limine to preclude plaintiff from presenting evidence regarding his negligence cause of action against Zerega based on events that occurred on December 24, 1997, the day after the van was towed. In deciding defendants’ separate motions for summary judgment dismissing the complaint, Supreme Court denied those aspects of the motions that sought dismissal of the negligence claims, and we affirmed. Thus, plaintiff was entitled to present his case on that claim of negligence. By granting Zerega‘s pretrial motion in limine to preclude plaintiff from eliciting evidence on that claim, Supreme Court deprived plaintiff of that right.
Accordingly, I would modify the judgment to the extent of reinstating plaintiff‘s cause of action for negligence against Zerega premised on the December 24, 1997 incident, and otherwise affirm the judgment.