Appeals: Darnella Myers v. 149 Automotive Inc.

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Darnella Myers, et al., Plaintiffs-Respondents, v. 149 Automotive, Inc., Defendant, Gaseteria Oil Corp., Defendant-Appellant.
1249
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
743 N.Y.S.2d 37; 2002 N.Y. App. Div. LEXIS 5880
June 4, 2002, Entered

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff injured party sued defendant gas station own to recover damages for personal injuries she sustained when she was doused with gasoline and set on fire by an assailant to whom the gas station owner had dispensed the gasoline in a paper cup. The Supreme Court, Bronx County (New York), denied the gas station owner's motion for summary judgment dismissing the complaint. The gas station owner appealed.

OVERVIEW: The injured party alleged that the gas station owner violated N.Y. Comp. Codes R. & Regs. tit. 9, § 1164.3, which prohibited dispensing gasoline in, inter alia, open containers. The trial court found that the existence of a legal cause between the regulatory violation and the assault was a fact issue for the jury. The appellate court disagreed. The regulation was designed to prevent accidental leakage or explosions during the transport and storage of gasoline. Thus, any violation was a technical one bearing no practical causal connection to the injury. Nevertheless, summary judgment was properly denied, as the alleged negligence also related to a breach of the common-law duty to entrust dangerous materials only to responsible persons whose use would not create an unreasonable risk of harm to others. Evidence regarding, inter alia, the assailant's intoxicated or deranged condition and a shouting match she had with the injured party, revealed fact issues as to whether the gas station owner knew or should have known that the assailant intended to use the gasoline to do harm, and as to whether the assailant's intervening act was a foreseeable consequence of any such negligence.

OUTCOME: The appellate court affirmed the order, without costs.

CORE CONCEPTS

Energy & Utilities Law > Gas Industry > Sale & Distribution
N.Y. Comp. Codes R. & Regs. tit. 9, § 1164.3, prohibits gas stations from dispensing gasoline in open and other unapproved containers.

Energy & Utilities Law > Gas Industry > Sale & Distribution
N.Y. Comp. Codes R. & Regs. tit. 9, § 1164.3, is the New York State analog to New York City, N.Y., Admin. Code § 27-4058(c), which is designed to make the transport and storage of gasoline safe by preventing accidental leakage or explosion of gasoline, not to make it more difficult to buy untanked gasoline.

COUNSEL:
For Plaintiffs-Respondents: Edward Sivin.
For Defendant-Appellant: Andrew Zajac.

JUDGES: Williams, P.J., Saxe, Buckley, Sullivan, Ellerin, JJ.

OPINION: [*38]

Order, Supreme Court, Bronx County (George Friedman, J.), entered January 22, 2002, which, in an action for personal injuries allegedly sustained when plaintiff was doused with gasoline and set on fire by a nonparty assailant, denied defendant gas station owner's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff alleges that defendant provided the gasoline to the assailant in a paper cup in violation of 9 NYCRR 1164.3, which prohibits gas stations from dispensing gasoline in open and other unapproved containers. The motion court denied defendant's motion for summary judgment on the ground that the existence of a legal cause between the alleged violation of 9 NYCRR 1164.3 and the alleged assault is an issue of fact for the jury. This was error. The regulation is the State analog to the City's Administrative Code § 27-4058(c), [**2] which, it has been held, is designed to make the transport and storage of gasoline safe by preventing accidental leakage or explosion of gasoline, not to make it more difficult to buy untanked gasoline ( Morales v City of New York, 70 N.Y.2d 981, 984, 526 N.Y.S.2d 418, 521 N.E.2d 425). "Thus, assuming there was a violation ..., it was a mere technical one bearing no practical or reasonable causal connection to the injury sustained." (Id.). Nevertheless, we affirm. The negligence alleged relates not only to the container in which the gasoline was dispensed, but also to the entrustment of the gasoline to the [*39] assailant under circumstances that made it foreseeable that the assailant wanted the gasoline in order to do harm. If, as plaintiff's evidence tends to show, the assailant was known in the neighborhood as a drug abuser, was obviously intoxicated and/or deranged at the time she was given the gasoline, had just engaged in a shouting match with plaintiff directly across the street from the gas station, and had no apparent legitimate use for the gasoline, defendant can be held liable for breach of the common-law duty to entrust dangerous materials only to responsible [**3] persons whose use would not create an unreasonable risk of harm to others (see, Hamilton v Beretta U.S.A. Corp., 96 N.Y.2d 222, 236, 727 N.Y.S.2d 7, 750 N.E.2d 1055; see also, Craft v Mid. Is. Dept. Stores, 112 A.D.2d 969, 970, 492 N.Y.S.2d 780, cited with approval by Rios v Smith, 95 N.Y.2d 647, 653, 722 N.Y.S.2d 220, 744 N.E.2d 1156; Splawnik v Caprio, 146 A.D.2d 333, 335, 540 N.Y.S.2d 615). On this record, issues of fact exist as to whether defendant knew or should have known that the assailant intended to use the gasoline "in an improper or dangerous fashion" ( Hamilton v Beretta U.S.A. Corp., supra, at 237), and, if so, whether the assailant's intervening act was the "foreseeable consequence of the situation created by the defendants' negligence" in entrusting the gasoline to her ( Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 4, 2002
104H5K

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