| Sweeney v Bruckner Plaza Assoc. |
| 2008 NY Slip Op 09913 [57 AD3d 347] |
| December 18, 2008 |
| Appellate Division, First Department |
| Delvin Sweeney, Appellant, v Bruckner Plaza Associates etal., Respondents, et al., Defendants. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Christine Bernstock ofcounsel), for Bruckner Plaza Associates, respondent. Boeggeman, George & Corde, P.C., White Plains (Cynthia Dolan of counsel), for ZeregaRecovery Corp., respondent.
Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered September25, 2006, granting the motion of defendants Bruckner Plaza Associates and Zerega RecoveryCorp. for a directed verdict at the close of plaintiff's evidence and dismissing the complaint,reversed, on the law, without costs, the motion denied, the complaint reinstated, and the matterremanded for a new trial.
This action was commenced by plaintiff, a quadriplegic, to recover damages for personalinjuries sustained as the result of Zerega's towing of plaintiff's customized van from ahandicapped space at the parking lot of a shopping center owned and operated by Bruckner.When plaintiff called the police to inform them that his vehicle had been towed, he wasinstructed to wait at the shopping center. However, plaintiff decided to retrieve the van himselffrom the yard to which the van had been transported after Zerega's tow truck driver told him thatthe yard was only two blocks way. Plaintiff claims that as a consequence of retrieving the van hedeveloped pneumonia and suffered tremendous strain on his hands and arms.
Defendants' motion for a directed verdict on the ground that plaintiff failed to make out aprima 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'svehicle (see Administrative Code of City of NY § 19-169.1 [b] [owner or operatorof private parking facility prohibited from towing or causing to be towed vehicles from facilityunless a sign is conspicuously posted stating, among other things, the name, address andtelephone number of the tow operator]), and that the towing of the vehicle was therefore tortious.We disagree with the trial court that, as a matter of law, the towing did not proximately cause[*2]plaintiff's injuries, or that plaintiff's decision to retrieve hisvan was an intervening act that broke the causual nexus between the towing and plaintiff'sinjuries.
The issue of "[p]roximate cause is a question of fact for the jury where varying inferences arepossible." (Rose v Brown & WilliamsonTobacco Corp., 53 AD3d 80, 106 [2008] [internal quotation marks omitted].) Violationof the Administrative Code or the Rules of the City of New York constitutes some evidence ofnegligence (Cruz v City of NewYork, 13 AD3d 254 [2004]). "As a general rule, the question of proximate cause is to bedecided 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 causewhere there is an intervening act, liability turns on whether the intervening act was a foreseeableconsequence of the defendant's negligence, and, as such, is generally a question for the finder offact (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]).
Defendants contend that plaintiff's retrieval of his vehicle was an intervening act. Whetherthis was a "normal or foreseeable consequence of the situation created by the defendant[s']negligence" (id.), however, is a factual issue, especially in light of the requirements ofAdministrative Code § 19-169.1 (b). It may be foreseeable that a person like plaintiffwhose vehicle has been towed, may attempt to retrieve the vehicle, in circumstances like plaintiffwas in, particularly when that person is constrained to rely on information provided by the towoperator's driver that the tow yard was only two blocks away, and in the absence of a statutorilyrequired conspicuously posted sign giving, among other things, the address of the tow operator.
A directed verdict is only appropriate where there is no rational process that would lead thetrier of fact to find for the nonmoving party (McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 210 [2004]. Inconsidering the motion "the trial court must afford the party opposing the motion every inferencewhich may properly be drawn from the facts presented, and the facts must be considered in alight 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 hethought was only a few blocks, especially since his specialized, unfoldable, motorized wheelchairand his physical condition made it extremely difficult for him to travel in anything other than acustomized vehicle. Thus, it cannot be said as a matter of law that plaintiff's actions were soextraordinary as to break the causual nexus between defendants' actions and plaintiffs resultantinjuries (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 disagreewith the majority that Supreme Court erred in granting defendants' separate motions at the closeof plaintiff's case for dismissal of the causes of action for trespass to chattel and negligence basedon 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 legalguardian was plaintiff) drove to a shopping center owned by defendant Bruckner. Plaintiff was awheelchair-bound quadriplegic who drove his specially-equipped, handicapped accessible van tothe [*3]shopping center. The van had neither handicapped licenseplates (see Vehicle and Traffic Law § 404-a) nor a government-issued placard(see Vehicle and Traffic Law § 1203-a) allowing him to park the van in a parkingspace designated for vehicles with either of those credentials (see Vehicle and TrafficLaw § 1203-b [1] ["Parking spaces for the handicapped shall be those parking spacesaccording to a holder of a handicapped parking permit provided in accordance with section onethousand two hundred three-a or as provided in section four hundred four-a of this chapter"]).However, at approximately 5:55 p.m., plaintiff parked the van in a parking space designated forvehicles with those credentials.
After plaintiff and his companions exited the store at 6:45 p.m., they returned to the parkinglot 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" toreport the van stolen. The police dispatcher plaintiff spoke to told him to wait at the shoppingcenter for police officers to arrive.
Shortly after plaintiff called "911," a woman in the parking lot told plaintiff that his van hadbeen 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 ZeregaRecovery Corp.; the driver told plaintiff that he had towed the van and he refused to bring thevan back to the shopping center. The tow truck driver, however, indicated to plaintiff thatZerega's storage lot was two blocks from the shopping center. Neither plaintiff nor his brothersaw any sign in the parking lot indicating the name, address and telephone number of the towoperator of the lot. Following this conversation with the tow truck driver, plaintiff, atapproximately 7:25 p.m., called "911" to inform the police that the van had not been stolen buttowed and that he wanted the police to assist him in getting his van back. Again, the policedispatcher 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 shoppingcenter 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 shoppingcenter 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 waybetween the shopping center and Zerega's lot, but his brother assisted him part of the time. Whenthey reached Zerega's lot, a Zerega employee returned the van to plaintiff without charge.
Plaintiff commenced this action against Bruckner and Zerega seeking damages under anumber of causes of action. Plaintiff claimed that, as a result of his exposure to the elements, therough trip over the city sidewalks and the physical labor he expended in wheeling himself, hesustained injuries to his hands, wrists and forearms and contracted bronchitis. Plaintiff alsoasserted claims against Zerega based on an incident that transpired at Zerega's lot the day afterthe van was towed, i.e., December 24. Supreme Court granted in part and denied in partdefendants' separate motions for summary judgment dismissing the complaint, and we affirmed(20 AD3d 371 [2005]). As a result of the orders on the summary judgment motions, plaintiff'scauses of action for negligence and trespass to chattel remained. Supreme Court subsequentlygranted Zerega's motion in limine to preclude plaintiff from presenting evidence regarding hisnegligence cause of action against Zerega based on events that occurred on December 24, 1997.Plaintiff then proceeded to trial on his negligence claim based on the events of December 23,[*4]1997 and his claim of trespass to chattel.
At trial, plaintiff's negligence cause of action was based on defendants' alleged failure tocomply with Administrative Code of the City of New York § 19-169.1 (b), which prohibitsthe owner or operator of a private parking lot from towing or causing to be towed any vehiclefrom the lot unless a conspicuously posted sign is present in the lot indicating, among otherthings, the name, address and phone number of the tow operator of the lot. Plaintiff posited twonegligence theories based on that Code provision. The first theory is that defendants were notpermitted to tow the van because there was no sign in Bruckner's lot complying with section19-169.1 (b) and, as a result of the unlawful towing of the van, plaintiff was "forced" to travel toZerega's lot to retrieve it. The second theory is based on the absence of a sign in Bruckner's lotthat, as required by section 19-169.1 (b), stated the address of Zerega's lot and Zerega's telephonenumber. Because he did not have that information, plaintiff asserts that he was unable either toassess accurately how far Zerega's lot was from the shopping center or to call Zerega and requestthe return of the van. The absence of the sign, according to plaintiff, "forced [him] to embark onan unknown journey to retrieve" the van, and, as a result of that journey, sustain personal injuries.Under his trespass to chattel cause of action, plaintiff claims that, based on the absence of a signcomplying with section 19-169.1 (b), his van was unlawfully towed, he was thus temporarily andunjustifiably deprived of possession of the van, and that the deprivation resulted in the personalinjuries he sustained.
At the close of plaintiff's case, defendants separately moved pursuant to CPLR 4401 todismiss the claims that went to trial. With respect to the negligence claims, defendants arguedthat plaintiff's decision to leave the shopping center to retrieve the van was, under the particularcircumstances, unforeseeable and that the hazards that actually caused plaintiff's injuries were thebumps, cracks, holes and other depressions in the public sidewalks that he traversed from theshopping center to Zerega's lot. With respect to the trespass to chattel claim, defendants arguedthat it should be dismissed because the van was not damaged as a result of their conduct.Supreme Court granted the motions. Plaintiff appeals from the judgment that was subsequentlyentered dismissing the complaint.
A motion for judgment during trial pursuant to CPLR 4401 "is appropriate where the trialcourt finds that, upon the evidence presented, there is no rational process by which the fact triercould base a finding in favor of the nonmoving party" (Szczerbiak v Pilat, 90 NY2d 553,556 [1997]). In my view, Supreme Court correctly granted defendants' motion pursuant to CPLR4401 because, on the evidence adduced during plaintiff's case, there was no rational process bywhich the jury could have based a finding in favor of plaintiff.[FN*]Specifically, plaintiff failed to make a prima facie showing that his injuries were proximatelycaused by defendants' alleged tortious conduct.
"The concept of proximate cause, or more appropriately legal cause, has proven to be anelusive one, incapable of being precisely defined to cover all situations. This is, in part, becausethe concept stems from policy considerations that serve to place manageable limits upon the[*5]liability that flows from negligent conduct. Depending uponthe nature of the case, a variety of factors may be relevant in assessing legal cause. Given theunique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, oncethe court has been satisfied that a prima facie case has been established. To carry the burden ofproving a prima facie case, the plaintiff must generally show that the defendant's negligence wasa 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 adefendant's conduct was a substantial factor in causing the events that produced a plaintiff'sinjuries, the court must consider (1) the aggregate number of factors involved that contributed tothe injuries and the effect that each had in producing those injuries, (2) whether the defendantcreated a continuous force active up to the time of the injuries, or whether the situation was actedupon by other forces for which the defendant is not responsible, and (3) the lapse of time betweenthe defendant's negligence and the point at which the plaintiff sustained the injuries (Mack vAltmans Stage Light. Co., 98 AD2d 468, 470-471 [1984], citing Restatement [Second] ofTorts § 433 and NY PJI 2:70, Comment).
The absence of a sign complying with Administrative Code § 19-169.1 (b) left plaintiffat the shopping center without the name, address and telephone number of the tow operator,Zerega. But the absence of that sign caused no injuries to plaintiff. Plaintiff's injuries were causedby (1) the public sidewalks, which had many "bumps, cracks, holes" and other depressions, thatplaintiff traveled over, (2) the physical labor plaintiff exerted in wheeling himself over thosepublic sidewalks, and (3) the cold temperatures to which plaintiff was exposed from the time heexited the store until he entered his van after retrieving it from Zerega's lot. Clearly, defendantsdid not create a continuous force active up to the time plaintiff sustained his injuries; rather, otherforces for which defendants were not responsible caused plaintiff's injuries—the conditionof the public sidewalks, plaintiff's exertion of physical labor and the cold weather. Additionally,there was an appreciable lapse of time between defendants' alleged negligence in failing to havein the shopping center parking lot a sign complying with section 19-169.1 (b) and plaintiff'sexposure to the forces that directly caused his injuries. Plaintiff exited the store at approximately6:45 p.m. and did not leave the shopping center until almost one hour later at 7:40 p.m. Duringthat 55-minute period, plaintiff spoke to a police dispatcher twice and on both occasions thedispatcher told plaintiff to wait at the shopping center for police officers to arrive. At bottom, the"immediately effective cause of plaintiff's injuries" was not the alleged negligence of defendants(Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, 952 [1978]); stated differently,defendants' alleged negligence was not a "direct cause" of plaintiff's injuries (Martinez vLazaroff, 48 NY2d 819, 820 [1979]). Concomitantly, their alleged negligence was not, as amatter of law, a proximate cause of plaintiff's injuries. Indeed, a finding that defendants' allegednegligence was a proximate cause of plaintiff's injuries is inconsistent with the policyconsiderations underpinning the law of proximate cause "that serve to place manageable limitsupon the liability that flows from negligent conduct" (Derdiarian, 51 NY2d at 314).
Contrary to plaintiff's assertion, defendants' alleged negligence in failing to have in theshopping center parking lot a sign that complied with section 19-169.1 (b) did not "force"plaintiff to leave the shopping center to retrieve the van. The absence of the sign did nothingmore than deprive plaintiff of information regarding the tow operator of the parking lot. Plaintiffleft the shopping center on his own accord after being advised twice by the police dispatcher towait at [*6]the shopping center for police officers to arrive andwas subsequently exposed to forces over which defendants had no control.
Even assuming that a material issue of fact existed regarding whether defendants' allegednegligence was a substantial factor in causing plaintiff's injury, the negligence cause of actionwas 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 consequenceof the situation created by the defendant's alleged negligence (Boltax v Joy Day Camp, 67NY2d 617, 619 [1986]; see Kriz v Schum, 75 NY2d 25, 36 [1989]). Here, plaintiff, afteralerting the police of his predicament and being told to wait at the shopping center for policeofficers to arrive, left the safety of the shopping center to travel an uncertain distance in hiswheelchair 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 thuswas not a foreseeable consequence of defendants' failure to post a sign (see Miecznikowski vRobida, 278 AD2d 793 [2000], lv denied 96 NY2d 709 [2001]).
Instructive on this score is Chang-Lei Cheng v Metropolitan Transp. Auth. (213AD2d 581 [1995]). In Cheng, plaintiff's decedent was a passenger on a Long Island RailRoad train heading from New York City to the Town of Huntington. Due to a fire in the wheelsof the last car of the train, the train stopped approximately one mile west of the Huntingtonstation. While other passengers waiting for service to be restored remained on the train or outsideof the train at the site where it stopped, 50 to 100 of the passengers, including plaintiff'sdecedent, walked on the tracks to the station. Plaintiff's decedent subsequently suffered a heartattack and died. Plaintiff commenced an action against, among others, the MetropolitanTransportation Authority (MTA), claiming that, as a result of the MTA's alleged negligence inoperating and maintaining the train, the decedent walked to the station instead of being droppedoff there by the train and, in the course of walking, suffered the heart attack due to the physicalexertion of the walk. The Second Department affirmed a judgment of Supreme Court dismissingplaintiff's complaint as against the MTA following a nonjury trial. The Court stated that thedecedent's heart attack and death were not reasonably foreseeable consequences of the MTA'salleged negligence (213 AD2d at 582).
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 isone 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, theevidence at trial regarding the cause of plaintiff's injuries was clear. Plaintiff's injuries werecaused by: (1) the particular condition of the public sidewalks that plaintiff traveled over, (2) thephysical labor plaintiff exerted in wheeling himself over those public sidewalks, and (3) the coldtemperatures to which plaintiff was exposed because of his decision to retrieve the van fromZerega'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 matterof law by Supreme Court.
With respect to the cause of action for trespass to chattel, defendants raise an interestingissue—whether a plaintiff may recover damages for personal injuries under that cause ofaction. 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 forpersonal [*7]injuries he sustained as a result of his trip from theshopping center to Zerega's lot to retrieve the van.
To recover damages under a cause of action for trespass to chattel, a plaintiff mustdemonstrate that he or she sustained an "actual injury" as a result of the defendant's tortiousconduct (see Kronos, Inc. v AVX Corp., 81 NY2d 90, 95 [1993]). Generally, the "actualinjury" element is satisfied by evidence that the chattel was damaged as a result of the tortiousconduct 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 achattel 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 thepossessor has a legally protected interest." The comment to section 218 (d) states that "If theactor has committed a trespass as defined in § 217 [e.g., dispossessing another of achattel], he is subject to liability to the person in possession of the chattel if he thereby causesbodily harm to the possessor . . . It is immaterial that the harm so caused wasneither intended by the actor nor the result of his negligent or reckless conduct whiletrespassing." (See also 1 Dobbs, Torts § 60, at 124-125 [2001].)At least with respect to the types of recoverable damages, the PJI charge on trespass to chattel isconsonant with the Restatement. That charge provides that "[a] person who, without justificationor consent, intentionally physically interferes with the use and enjoyment of personal property inthe possession of another commits a trespass and is liable for any damage caused by thatconduct" (PJI 3:9 [emphasis added]). The comment to that charge notes that the "[d]amagesrecoverable are those proximately resulting from the trespass" (2 NY PJI2d 3:9, at 98 [2008]). Inlight of this authority and the absence of any indication that the law of this State is otherwise, itappears that damages for personal injuries may be recoverable under a cause of action fortrespass to chattel.
I need not, however, decide this novel issue. Even assuming that damages for personalinjuries are recoverable under a cause of action for trespass to chattel, for the reasons discussedabove, 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 wasappropriate.
I agree with the majority's tacit conclusion that Supreme Court erred in granting Zerega'spretrial motion in limine to preclude plaintiff from presenting evidence regarding his negligencecause of action against Zerega based on events that occurred on December 24, 1997, the day afterthe van was towed. In deciding defendants' separate motions for summary judgment dismissingthe complaint, Supreme Court denied those aspects of the motions that sought dismissal of thenegligence claims, and we affirmed. Thus, plaintiff was entitled to present his case on that claimof negligence. By granting Zerega's pretrial motion in limine to preclude plaintiff from elicitingevidence 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[*8]action for negligence against Zerega premised on theDecember 24, 1997 incident, and otherwise affirm the judgment.
Footnote *: Contrary to plaintiff'ssuggestion, our prior affirmance of Supreme Court's order denying in part defendants' separatemotions for summary judgment (20 AD3d 371 [2005]) did not preclude the trial court fromgranting defendants' motions pursuant to CPLR 4401 (see S.L. Benfica Transp., Inc. v Rainbow Media, Inc., 13 AD3d348 [2004]).