*1 Mass. 837 Young v. Atlantic Richfield Co. administrator,1 Atlantic Young, & another2 vs.
Marshall Company. Richfield 2, 1987. Norfolk. 1987. September May Lynch, & Hennessey, JJ. C.J., Wilkins, Present: Abrams, Nolan, warn, station, care, Duty to gasoline Standard of Negligence, Mini-serve Cause. Proximate cause. Proximate arising out gasoline of a station
At the trial of an action owner killed, boy pumping who had been while year of the death of a fifteen old by his mother at gasoline parked into the fuel tank of an automobile and an containing gasoline pumps several “mini-serve” island the air sought driver to use air when a second automobile whose pump, to warrant a the evidence was insufficient boy, backed into the “mini-service” finding developing that the defendant was where, locating pumps and in the air next to program an “attendant will post that the defendant’s failure to assuming even proximate was not the gas” sign negligent, death; had no to warn of the boy’s where the owner cause of the where, island; and automobiles near the service obvious of other island, the at the service increased although the air increased traffic increased traffic was risk injury which could result from possibility of J., con- and not unreasonable. which was obvious [841-843] Wilkins, J., dissenting. curring; Abrams, by the in a civil action argument There no merit to the “stand to the that the defendant would defense counsel’s statement rights. defendant’s appellate amounted to a waiver of by your verdict” [843] Court on May commenced in Superior
Civil action 19, 1978. Meyer, tried before Andrew Gill J.
The case was its own initiative transferred Judicial Court on The Supreme Court. the case from Appeals Lloyd Young. the estate of Of Young. Carole him)
Thomas D. Burns A. with for (Christopher Duggan *2 the defendant. (David
Leonard Glazer I. Levine & Frank E. Glazer with him) for the plaintiffs. accident, J. This case arises out of an automobile
Nolan, 22, 1977, which occurred on June at a service station gasoline (Arco). owned the Atlantic Richfield Lloyd Company a fifteen old was killed after Young, year boy, pumping into the fuel tank of an automobile driven into’ the gasoline mother, station his Carole adminis Young. Lloyd Young’s trator death action Arco and its brought wrongful lessee, Santilli, alla, John inter that both were alleging, parties Carole who was at the time of the negligent. Young, accident, also for infliction of emo sought recovery tional distress. The returned verdicts in favor of special Arco and that the trial plaintiffs. appealed argues judge verdicts, should have allowed its motion for directed motion to dismiss or its motion for the verd judgment notwithstanding icts.3 We transferred the case on our own motion. We now and reverse order to be entered for Arco. judgment 1. The accident. built and an Arco leased to Santilli Arco service station and two service islands. containing building Each island contained and an air One pumps pump. on one of the islands had a on its which gasoline pump top read “mini serve.” Carole “mini serve” meant Young thought “self-service.” She drove into the station on day and accident saw two cars at one of the islands. She testified said, that she “These other but the side is pumps busy, self-service.” She also testified that her son Lloyd responded: “Well, to the self-service one. I’ll Carole go gas.” drove her car with the mini-serve Young sign, and out to Santilli Lloyd got gasoline. approached said, and “I’ll take care of it” or “I’ll be with boy you Kovack, Joseph Santilli withdrew his the driver the car appeal. which vehicle, collided with the third-party impleaded by was a defendant administrator, Arco. Kovack brought by Lloyd Young’s settled the case appeal judgment against and did not him in the brought by action Carole Young. Mass. 837
Young Atlantic Richfield Co. minute,” the cars at the other and then returned to service and then re- $5.00 worth of gasoline, island. Lloyd pumped the car to turned to rear of replace cap tank. Kovack, station,
Before the had entered the Youngs Joseph man, station old drove his car into the a seventy-seven year Santilli to it next to the station He asked building. parked him to over to the check his tire for air and Santilli told pull he be with him momentarily. air at the island and would and 15 miles Kovack backed at a of between 12 per up speed automobile, hour and crashed into Young’s crushing Lloyd. out of her car and watched him die. As a Carole Young got *3 result of this Carole “intrusive tragedy, Young experienced her until recollections and visualizations of son’s death” up condition, trial, the time of and an testified that this expert stress would continue for the syndrome, post-traumatic likely rest of her life.4
2. The case. On Arco argues appeal, evidence was insufficient to verdict that it jury’s support was counter that Arco was negligent. the mini-service and in developing locating program,
air next to the This gasoline pump pumps. negligence, they claim, created an unsafe condition on the which premises the death caused and the Lloyd Young injuries subsequent to Carole We the evidence in the Young. review most light favorable to the Poirier v. Plymouth, plaintiffs.
Arco the mini-serve in the 1970’s developed early program as an incentive to to increase lessee-dealers sales. gasoline Under the the dealer would but would program, service, oil, no additional such as provide checking checking air, or at a windshields. Gasoline mini-serve washing was 2 to 3 cents than at a full-service typically cheaper pump. Mini-serve was to be used in areas where self-serve was only that, admitted An at the Arco time of illegal. representative 4A of this conclusion was admitted in evidence and videotape support but, jury. shown to the available our tape appeal, This because of today, result we not reach question prejudicial do emotionalism. accident, it was for a station Massachu- illegal
setts to have both self-service and full-service islands. In self-service stations were where the entire sta- permitted only tion was used for self-service. Internal documents of Arco introduced in evidence indicated that Santilli’s station was pre- of station at which Arco’s mini-serve cisely type program was aimed.
Santilli testified that his customers were confused mini-serve Arco testified that had sign. representatives no formal of the mini-serve way communicating meaning to customers. Arco relied on sales program representatives dealers, to the who in turn were to explain program explain it to the customers. of an Arco According testimony repre- sentative, mini-serve intended to sign only identify the mini-serve once customers were familiar with the Nevertheless, a new Arco eventually sign program. developed which read “Mini Serve Island—attendant will pump —Use Full Serve Island for service.” The new were signs complete $28.00 available to dealers for but Santilli testified that he never one. Arco a roof saw Santilli with sign provided said “Mini serve—check our an entrance which gas prices,” said, Price,” which “Low Gas and a mini-serve said, which “Look Low Price.” sticker *4 An Arco testified that the location of an air representative at the island would create more traffic that gasoline pump accident, After the could into gasoline. bump people pumping that he wanted the air Santilli told an Arco representative moved he felt the location of the air have “may because Santilli, moved contributed to the incident.” to he According to the the air from the island the side of station building he the air line after with freezing during experienced problems the winter 1978. Arco, the had a
At self-service stations owned by company the stations with policy equipping pump operation precaution recommended for the safe One of the Arco signs. precautions was that the gasoline gasoline dispensing person dispensing in area.” Santilli testified is “to be aware of other vehicles the that the risk of hit a car while being pumping 841 him station business.” before he learned “the gas obvious to not that Arco did not require Arco testified An representative stations be- be at mini-serve to placed pump precaution to not were cause members public supposed mini-serve at pumps. the evidence was suffi Analysis. 3. In whether reviewing Arco, on the we to establish negligence adopt cient part Poirier favorable to the view of evidence most plaintiffs. 206, 212 is whether (1978). Mass. The test Plymouth, v. derived, evidence, from whatever source any in “anywhere be from which a of circumstances could found combination be in favor reasonable inference could drawn plaintiff.” Id., Hertz Raunela v. Corp., quoting no warrants when rational view of evidence Only be that the defendant was issue finding negligent may Mullins v. Manor Pine College, taken jury. test, this we unable discern applying in view of the evidence which would the verdicts
any
support
have
that
favor of the
we
said
Although
judicial
plaintiffs.
cases is ex
intrusion into jury decisionmaking
rare, MacDonald v. Ortho Pharmaceutical Corp.,
ceedingly
denied,
(1985),
Mass.
cert.
Arco had a to maintain its in a duty reasonably “property circumstances, view safe condition in of all the including others, likelihood of the seriousness injury injury, Ellard, and the burden of Mounsey risk.” avoiding This includes the act with reasonable care to harm caused a third prevent person. Mullins, Indeed, supra at 54. brief admits it Arco that owed the the station in reasonably keep safe condition or warn them that arise against dangers might from the use of the to recognize. were property likely case is
The determinative this whether Arco’s question to use reasonable care to the station safe keep *5 The Arco to in station. warning signs required post plaintiffs that Arco was a at the failing sign argue negligent post
842
mini-serve
which would have informed
patrons
attendant
the gasoline.
pumped
Alternatively,
argue Arco was
because it did
negligent
not
a
its
post
sign warning
to be aware of other
patrons
automobiles
the area. Even if
we assume that Arco’s failure to
an “attendant will
post
increased the
gas” sign negligently
likelihood that customers
would leave their vehicles to
the risk that a customer
pump gas,
left
who
his vehicle to
be
gas would
a
injured by
negli-
motor vehicle was not
gently operated
a
foreseeable
of
failure
consequence
any
such a
As
post
sign.
our cases often
the defendant’s
say,
if
negligence,
any,
not
cause of the
Cast
proximate
injury.
differently, Arco’s
breach of
did not
create
risk of the
duty
which was
species
related to the
which
causally
result
occurred.
Bellows Wor-
Co.,
188,
cester
297 Mass.
Storage
See Stone v.
Williams,
639,
(1984)
64 N.Y. 2d
in rear
(plaintiff injured
end collision while
whether
checking
attendant had securely
station,
held that breach of
of
service
replaced
cap;
duty
if
any,
cause
W.L.
proximate
plaintiff’s injuries).
Keeton,
(5th
&
1984).
Prosser W.P.
Torts
ed.
426-427
also
that Arco had a
plaintiffs
argue
post
to be aware of
warning
other automobiles
patrons
area. We
If a risk is of such nature
it
that would
disagree.
is,
be obvious to
there
ordinar-
average
persons
intelligence,
no
on the
owner
to warn of the
ily,
part
property
risk. St. Rock v.
342 Mass.
Gagnon,
(1961). Clough
v. New
Tel. &
Tel.
35-36
England
Condakes,
Sesto v.
Del
our
fifteen
old
who
society,
average
year
has
boy
completed
tenth
has
been
from a
about
grade
taught
age
very young
Such
of automobiles.
are obvious to a
dangers
fifteen
old
See Polak v.
year
average intelligence.
Whitney,
(1985) (no
Ct.
that an
warn
App.
could collide with an automobile
automobile
parked
house).
near
Arco had no
to warn of a
street
defendant’s
should have been aware. St.
which
Rock,
724;
Keeton,
§
&
at 427.
at
Prosser
supra
supra
*6
Young Arco contention that also with the We disagree plaintiffs’ at the islands. in the air was placing sure, had a the station a safe design To be Arco duty sufficient room to maneuver manner where vehicles had risk, at but the location were not unreasonably patrons placed of the air at the island no indication gives no Arco violated this The air created duty. greater the than would the of another gas Although presence pump. island, an air increased traffic at the as additional just done, would have the increased injury gas pump possibility traffic is a risk which is which could result increased is obvious and not unreasonable. Arco to use only required to make safe. Mounsey reasonable care its stations reasonably Ellard, (1973).5 The also claim that Arco’s should not be plaintiffs appeal heard Arco’s the Arco would because counsel told “stand jury verdict” The re- by your during closing argument. liance on Dalton v. Post Publishing
(1952), is Defense counsel’s confi- expression inapposite. a dence in no amounted to waiver of system way as was the case in Dalton. We have never held such a rights, to a statement to amount and we rights, waiver appellate decline do so today. reversed.
Judgments cases products liability arguing In their cite several plaintiffs brief gasoline. had involved in the use of duty dangers that Arco to warn warn plaintiffs, In the cases cited imposed case, product. no of a In the there was evidence about fact, way dangerous. product gasoline in some defective brief, the sole point theory at a later in their admit that plaintiffs premises agree unsafe. Since we with liability was that the were had care to a safe service that Arco to use reasonable maintain station Mounsey, supra, defining under we conclude that cases controlling. about are not dangerous products warn
n J. One conclude that (concurring). fairly some may Wilkins, customers would have a mini-serve interpreted sign as the aof self-service equivalent thus increased sign. *7 the likelihood that certain customers would leave their vehicles whether, law, The is a pump gas. question as matter of Arco’s failure to erect a customers to be on sign warning guard other vehicles did not increase the unreasonably risk of caused injury by of other vehicles improper operation on the I with the premises. agree court that the evidence did not a jury question.
Conclusions such as no cause” or the absence “proximate of result, “reasonable to describe the but foreseeability” help little do the considerations that led nothing explain view, to those conclusions. the risk of to a cus- my injury tomer from the of on negligent another vehicle operation of a self-service station is inherent and obvious. There premises is no warn such a danger. J. I dissent from the (dissenting). result reached
Abrams,
the court. The court
assumes that Arco was
an “attendant
failing
will
but then
post
pump gas,”
concludes that
on the
of Arco was not the
any negligence
part
cause of
accident.1 I
proximate
Young’s
do
believe
Lloyd
clear,
the court needs to assume
because it
is
agree
1I
with the
of our
In reviewing
court’s statements
standard of review.
verdicts,
for judgment notwithstanding
denial
motion
we must
evidence,
derived,
whether “anywhere
consider
in the
from whatever source
any combination of circumstances could be found from which a reasonable
Corp.,
Hertz
Raunela v.
plaintiff.”
inference could be drawn
favor of the
Plymouth,
Poirier
361 Mass.
See
v.
Mass.
Moreover,
particular warning,
whether a
or whether the omission
warning,
of a particular
convey
satisfies the
the nature and extent
always
jury;
“is almost
an issue to be resolved
few
questions
lay judgment
‘more
left to a common sense
than
appropriately
warning gets
message
that of whether a written
an average
across to
’
1293, 1304 (D.D.C.
Ferebee v. Chevron Chem.
person.
Supp.
552 F.
1982).”
131, 140,
Corp.,
MacDonald v. Ortho Pharmaceutical
394 Mass.
denied,
however,
(1985). It
appear,
cert.
Port 376 Mass. See Mullins v. Pine Manor The College, Arco’s scope the act which should have been foreseen does not accident, include a to foresee this but it does particular include a to act customers reasonably protect struck In motor vehicle. the cir possibility being case, cumstances of this it foreseeable that an accident would at a mini-serve because customers happen did not understand that should not of their out vehicles they get — either or to seek out a station attendant gas gas find out what mini-serve meant. Evidence was that presented did customers not understand what meant mini-serve because these stations were uncommon at time of this extremely Santilli accident. testified that customers their many pumped own at the mini-serve because mini- gas thought Moreover, that, serve meant self-serve. Santilli stated until he business, entered the gas station he did not appreciate hazards associated with other vehicles station. at a son, his own to the gas, exposed pumping risk of he foreseeable harm that would be another injured by vehicle at the station. order to reach its result the court assumes an “attendent will would gas” read have been or heeded. On the Arco’s failure contrary, or instructions the inference that give any warning “permits it would have alerted the user and forestalled the accident.” v. Ford Motor Ct. App. *9 Wolfe Thus, (1978). Arco, the of 349 conduct failing supply awas substantial sign, factor about harm which bringing occurred here. station,
While there is
some risk of harm at a
always
gas
be it from the
aof
flammable substance or
presence
highly
area,
from the
vehicles in a
small
failure
presence many
to warn
instruct
customers
the mini-serve
concerning
pro-
increased this
the harm
incurred
gram
risk of
which
here.
Customers were outside of
vehicles and
their
these
exposed
ain situation where
could have remained in their
they
attendant,
waited
realized
vehicles and
for an
had
that
attendant
law does
that
pumped
gas.
require
847
Because
questions
proximate
decide, see,
Michnik-Zilber-
for the
e.g.,
issues
jury
man,
12; Mullins,
court
at
at
I believe the
supra
supra
law,
as a matter of
errs by deciding,
any negligence
Arco was not the
cause of
injuries.
proximate
plaintiffs’
cases,
cause
On the basis of our
the issue of
presented
proximate
See,
an issue for the
to decide.
Solimene v. B. Grauel
e.g.,
Co.,
Michnik-Zilberman,
KG,
(1987);
&
The court also concludes that Arco had no to warn customers to be alert for other automobiles in the area because automobiles should have been obvious to danger posed son. I we must view the evi disagree. Again, dence on this issue in the most favorable to the light plaintiffs. Poirier v. As Plymouth, already noted, that, Santilli stated station prior entering gas business, he did not other appreciate dangers posed by Moreover, in vehicles at the station. training employees in the safe Arco instructed them to be alert gas, dispensing this sort for vehicles in area. Finally, warning included on the self-service Arco did not consider the pumps. other to be so obvious that it was vehicles presented both and the Cf. Kalivas to warn unnecessary employees public. (1983) v. A.J. Felz Ct. (jury App. was not could find that which warning given theypublic rendered defec- as extensive as that to salesmen given product *10 848
tive). Given that Arco itself realized that individuals dispensing automobiles, not the gas other may appreciate dangers posed by it is also error for the court to take this issue from the and decide, law, as a matter of associated with dangers other automobiles the station are obvious. gas
An obvious or a known danger requires only knowledge condition, of the or the but also of the activity appreciation the and the of the danger, including probability gravity threatened (Second) § harm.4 See Restatement of Torts 343A (1965). comment b It is to look to the an important exposure individual has had with the circumstances to deter particular mine whether the individual is conscious of “fully dangers that are Mullins v. Pine Manor Mass. present.” College, victim’s to the Clearly, dangers exposure was minimal. He had never before. He presented gas pumped fact, was not old In he to drive. enough having difficulty at the time the accident occurred. Whether replacing gas cap the victim could creates an issue for appreciate not the court. jury, addition, as comment f of (Second) the Restatement of Torts notes, (1965) § 343A there are situations which possessor of land should that a condition will cause dangerous anticipate harm to another obviousness regardless danger. “Such reason to harm to the visitor known expect arise, obvious for where dangers may example, possessor has reason to that the invitee’s attention be dis expect may tracted, obvious, so that he will not discover what is or will discovered, what he has or fail to himself forget protect f, (Second) § of Torts 343A comment at 220 it.” Restatement case, (1965). In if the other vehicles this even posed obvious, distracted in the station was son was he difficulty encountering replacing gas cap was not aware of the need himself from danger. protect that, rejected product obviously danger The court has the rule where a is ous, City Corp., Tank a manufacturer cannot be found liable. Uloth v. law, think, ought discourage misdesign “The we Id., Palmer encouraging quoting rather than it in its obvious form.” Inc., Massey Ferguson, App. 3 Wash. *11 that he reflects was aware testimony Santilli’s others in the gas the danger son did appreciate posed are motor that vehicles general understanding station. While law, as matter of the be obvious might dangerous involved and becoming thereby presented by pumping does not is not obvious that it in automobile accident so an an for the could jury even issue jury. properly alone.5 their on this ground have based finding I dissent. Ellard, Mounsey According principles expressed (1978), reasonably property Arco had the maintain its condition, safe in view of all the circumstances. This test of “reasonableness care jury in all determine burdens of permits the circumstances” what difficulty an owner light expense imposed unreasonable and harm to probability balanced of the foreseeable seriousness concerning evidence of warn others. Id. at 709. Because the omissions ings violated was sufficient to conclude Arco had permit condition, I do not its maintain in a safe property negligence, necessary believe it is to reach the other evidence Arco’s including involving design the evidence station.