| Gray v Amerada Hess Corp. |
| 2008 NY Slip Op 01708 [48 AD3d 747] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Dorothy Gray, Respondent, v Amerada Hess Corp.,Appellant, and John Doe et al., Respondents. |
—[*1] Ornstein & Ornstein, PC (Joshua A. Schulman, LLC, New York, N.Y. [Michael P. Mangan]of counsel), for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Amerada Hess Corp.,appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County(Ambrosio, J.), dated November 14, 2006, as denied its motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs to theplaintiff-respondent.
The plaintiff allegedly was injured when a car hit her from behind as she was making apurchase at the window of a kiosk located in a gas station owned by the defendant Amerada HessCorp. (hereinafter Hess). The driver's identity was never ascertained, as he or she fled the sceneimmediately. The plaintiff sued, among others, Hess, alleging, inter alia, that Hess was negligentin failing to erect barriers to prevent vehicles from hitting pedestrians using its outdoor kioskwindow. Discovery revealed that other Hess gas stations were equipped with two-foot high,inverted U-shaped barriers, called "bollards," placed in front of the kiosks, where pedestriansmade their purchases. On appeal, Hess claims that it proved its prima facie entitlement tosummary judgment and that the plaintiff failed to raise a triable issue of fact, arguing, inter alia,that the actions of the unknown driver were the sole proximate cause of the plaintiff's injuries.[*2]
"Generally, issues of proximate cause are for the factfinder to resolve" (Adams v LembergEnters., Inc., 44 AD3d 694, 695 [2007]). Here, triable issues of fact exist as to whetherproperly placed bollards could have prevented the plaintiff's injuries. Moreover, since questionsconcerning what is foreseeable may be the subject of varying inferences, these issues aregenerally for the fact finder to resolve (see Derdiarian v Felix Contr. Corp., 51 NY2d308, 315 [1980], rearg denied 52 NY2d 784 [1980]). In these circumstances, where thekiosk was specifically designed so that pedestrians were required to stand with their backs tovehicles maneuvering to access the gasoline pumps which surrounded it, and where protectivebarriers were placed in front of the kiosks at other Hess gas stations, we cannot say, as a matterof law, that the accident was unforeseeable (see Phelan v Ferello, 207 AD2d 874, 875[1994]; Arena v Ostrin, 134 AD2d 306 [1987]), or that the unknown driver's interveningact of negligence was "of such an extraordinary nature or so attenuated the appellants' possiblenegligence from the ultimate injuries as to be deemed a superseding cause necessarily relievingthe appellant of liability" (Arena v Ostrin, 134 AD2d at 307).
Accordingly, the Supreme Court properly denied Hess's motion for summary judgmentdismissing the complaint and cross claims insofar as asserted against it. Mastro, J.P., Florio,Miller and Dickerson, JJ., concur.