Busse v Lowe's Home Ctrs., Inc.
Annotate this CaseDecided on August 19, 2009
Supreme Court, Yates County
Frank Busse and Sarah Busse, Plaintiffs,
against
Lowe's Home Centers, Inc., Lowe's Home Improvement, LLC, and/or Capps Rent-A-Car, Inc., Defendants.
2007-0533
Jacob P. Welch, Esq.
(Anna Czarples, Esq., of counsel,)
Attorney for Plaintiffs,
Feldman, Kieffer & Herman, LLP,
(Christopher E. Wilkins, Esq., of counsel,)
Attorneys for Capps Rent-A-Car, Inc.,
Mackenzie Hughes, LLP,
(Arthur W. Wentlandt, Esq., of counsel,)
Attorneys for Lowe's.
W. Patrick Falvey, J.
Capps Rent-a-Car ("Capps") by this summary judgment motion, seeks
dismissal of
1) plaintiffs' complaint, in its entirety, and 2) co-defendant Lowe's cross claims
against Capps. Capps asserts that there is no question that it was not negligent, and that plaintiffs'
claims are without merit. Plaintiffs cross move for partial summary judgment on the issue of the
negligence of Capps, and also seek an order allowing the plaintiffs to amend their Bill of
Particulars. The plaintiffs' complaint alleges a cause of action for negligence against the two
defendants, as well as a loss of society and services derivative claim by the spouse of the injured
plaintiff ("Frank").
Following argument of the motions on July 21, 2009, the Court granted the plaintiffs' motion to amend their Bill of Particulars and reserved decision on the summary judgment motions. Upon review of all the papers submitted on the motions, and the argument thereon, the [*2]Court determines that both summary judgment motions must be denied.
Capps' motion to dismiss any cross claims of Lowe's against Capps is not determined in that no party submitted Lowe's answer. Therefore, that part of Capps' motion is denied. CPLR §3212 (b). The Court notes that Capps did not make specific mention of the request for dismissal of Lowe's cross claims in its initial motion, but did so only in reply to the plaintiffs' response and cross motion.
Plaintiffs' seek damages for injuries sustained by Frank at his home, when he backed a Bolens lawn tractor (purchased from Lowe's) off a "Load-to-Go" truck (owned by Capps) that he had rented at Lowe's. He used wooden ramps that had been used by Lowe's employees to load the tractor on to the rental truck, and which the Lowe's employees placed into the truck after Frank asked the employees how he was to unload the truck at his home. When Frank arrived home, he put gasoline in the tractor, turned it on, and while on the tractor, backed it off the truck, onto the wooden ramps, whereupon one of the ramps fell, which in turn caused the tractor and plaintiff to fall.
It is undisputed that the rented "Load-to-Go" truck was equipped with aluminum ramps, supplied by Capps, which were hidden under the bed of the truck, and that these ramps were meant to be used to load and unload items from the truck. It is also clear that no one at Lowe's told either plaintiff of the existence of these ramps, or where they were located.
Plaintiffs purchased the riding lawn mower at Lowe's on July 27, 2006. In his deposition, Frank testified that an employee told him it would be six weeks before the tractor could be delivered. An employee told him about a truck rental service, available at Lowe's. Plaintiff returned the next day and rented the Capps "Load-to-Go" rental truck. Frank did not ask Rachael, the Lowe's sales representative, about the equipment on the truck. Three Lowe's employees loaded the tractor on the truck, using planks they retrieved from the store as ramps. Plaintiff watched this process. The three employees pushed the tractor up the wooden planks. Frank asked an employee how he was supposed to unload the tractor, but does not recall if he got a verbal response. He then saw a Lowe's employee place the two planks onto the back of the truck. When plaintiff got home, Frank lowered the gate down, put the planks out, and got on the tractor to drive it down the planks. He was injured as he coasted down the planks.
The owner's manual for the tractor says not to drive up or down ramps when loading or unloading the machine onto a trailer or truck. Frank did not read the owners manual prior to the accident. Furthermore, the method he used to unload the tractor was inconsistent with what he observed the Lowe's employees do.
Thompson, Lowe's manager, testified in his deposition that he sold the tractor to plaintiffs, but was not at work the next day when the tractor was loaded. However, when he participated in loading a tractor, he used two metal ramps that came with the Capps truck. He never used, or saw used, the wooden planks, that were owned and assembled by Lowe's, to load an object onto a Capps truck. The wooden ramps were only to be used to load equipment into private passenger vehicles. Lowe's employees were not to allow the wooden ramps to leave the Lowe's store.
Thompson testified that he never read the Bolens tractor owner's manual concerning loading and unloading. Lowe's employees help customers load, but never unload, and they do not receive special instruction on how to load. He testified that he did not recall telling a [*3]customer that it would be six weeks before a lawn tractor would be delivered. He testified that he thought it would be an unsafe practice for Lowe's employees to use the wooden ramps instead of the metal ramps that came with the Capps truck.
Klafehn, a Capps representative, testified in his deposition that Capps contracts with Lowe's to furnish rental trucks nationwide. Capps is paid a flat monthly fee and Lowe's in turn rents the truck as many times as Lowe's wants for the fee Lowe's sets. The Master Service Agreement between Capps and Lowe's does not require Capps to advise Lowe's on the means and methods Lowe's should use to assist Lowe's clients in delivery of Lowe's items, nor does the contract require Capps to provide Lowe's with instruction on how to load or unload items (Ex K). He testified that Capps did not know Lowe's was using its own manufactured wooden ramps to assist Lowe's customers in loading Lowe's products onto Capps trucks. The planks used had no relationship to the rented Capps vehicle. Thus, Capps argues, it had no responsibility for the plaintiffs' injuries.
Capps asserts that plaintiffs can not prove a prima facie case against Capps, because, contrary to the statements in the plaintiffs' Bill of Particulars, Capps had no duty: To properly instruct Lowe's employees on proper ways to show customers how to unload large heavy wheeled items off flatbed trucks; to supply written warnings concerning proper use of ramps; to advise customers not to drive small vehicles off the flatbed truck; to disallow use of flatbed trucks for deliveries of heavy wheeled vehicles; or to supply Lowe's with low bed trailers for deliveries of lawn tractors. Capps also argues that, contrary to the plaintiffs' amended Bill of Particulars, it had no duty to label the truck in a manner that alerted renters as to the location of the hidden safe metal ramps, nor to provide instructions to renters as to the location of the metal ramps. Capps further asserts that there is no question that Lowe's was not an agent for Capps in regard to the rental truck, and therefore it is not vicariously liable to plaintiffs for the actions of Lowe's employees. In addition, Capps states that the Graves Amendment (49 USCS §30106) extinguishes any vicarious liability. The Graves Amendment provides that an owner engaged in the business of renting motor vehicles is not liable under the law of any state by reason of being the vehicle's owner, for harm to person or property resulting from use of the vehicle, if there is no negligence or criminal wrongdoing on the owner's part. Finally, Capps argues that the Master Service Agreement between it and Lowe's also fails to establish any liability of Capps for plaintiffs' injuries.
Plaintiffs assert they are not making a vicarious liability claim under VTL §388 against Capps (which would be subject to the Graves Amendment), but rather a direct negligence claim. Plaintiffs assert Capps' direct negligence was failing to label or alert renters that the metal ramps were inconspicuously located under the bed within the truck.
Plaintiffs claim Lowe's is an agent for Capps, and therefore, Capps is responsible for Lowe's negligence. Plaintiffs allege Lowe's was negligent in providing the wooden ramps to plaintiffs; failing to advise plaintiffs of the metal ramps; failing to advise that plaintiffs should not drive the tractor off the truck; in putting the wooden ramps in the truck; in supplying a truck with a high bed instead of low bed; and failing to provide any written or verbal instructions as to the metal ramps.
Summary judgment is issue finding not issue determining. Therefore, it should only be granted when no factual issues exist. The Court must view the evidence in the light most [*4]favorable to the non-moving party and give the non-moving party the benefit of all reasonable inferences. Negri v Stop & Shop, 65 NY2d 625.
The issue of duty of care is a threshold issue of law for the court. Gibson v Metropolitan Opera, 5 NY3d 574. Unless Capps owed a duty of care to the plaintiffs, the plaintiffs will not be able to prevail in their lawsuit as against Capps. The court makes a determination on duty of care "by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability." Mtr of New York City Asbestos Litig, 5 NY3d 486, 494. The courts are reluctant "to extend the duty of care such that a defendant may become liable for failure to control the conduct of others" ( Gibson at 577) and will impose such a duty only where "the defendant's relationship with either the torfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm, and that the specter of limitless liability is not present." (Gibson at 577, quoting New York Asbestos Litig at 494).
If Lowe's was an agent for Capps, then, the Court could find, as a matter of law, that Capps owed a duty of care to the plaintiffs, and Capps could be found negligent regarding both the negligence of Lowe's employees, and any direct negligence of Capps, such as plaintiffs' assertion of failure to alert renters to the existence and location of the metal ramps.
Generally speaking the existence of an agency relationship is an issue of fact. People v Harmon, 221 AD2d 207 (1st Dept 1995), app den 87 NY2d 1020. "When the facts pertaining to the existence or nonexistence of an agency are conflicting, or conflicting inferences may be drawn from the evidence, the question presented is one for the trier of fact." 2A NY Jur 2d, Agency § 32. Based upon the proof presented on the motion, the Court determines that there are questions of fact on whether Lowe's acted as an agent for Capps in regard to the truck rented by the plaintiffs.
The Master Agreement (Ex K to Capps' notice of motion) between Capps and Lowe's in paragraph 2 states: "The parties recognize that the Equipment is not leased, but rather is held by Lowe's as an agent for Vendor. Title to the Equipment is, and at all times shall remain in and be retained by Vendor." Paragraph 3 of the same contract again refers to Lowe's as "an agent for Vendor," requiring Lowe's to collect and remit to Capps sales taxes collected for the truck rentals, in accordance with instructions as provided by Capps. The Master Agreement, at paragraph 24, requires Capps to provide insurance. Paragraph 26 provides that a renting customer is liable to Capps for loss of use of the equipment damaged during that customer's rental. Exhibit A to the Master Agreement requires Capps to handle all claims and paperwork associated with claims. Exhibit B to the Master Agreement requires Lowe's to reasonably follow the Capps rental guidelines, attached as Schedule B, and to report accidents involving the Equipment to Capps upon return of the Equipment or upon notification from the driver. The Capps Rental Guidelines at Schedule B to the Master Agreement provides for the amount Lowe's is to charge a customer for a rental, to wit: $19.00.
The rental agreement signed by the plaintiff refers to Capps throughout, and states in the first paragraph of the fine print on the back of the agreement: "Capps Truck Rental (Capps) hereby rents to the renter identified on the reverse side the Vehicle described, subject to all terms and conditions of this Agreement." ( Ex L to Wilkins Reply Affirmation). However, the [*5]plaintiffs did not read the rental contract at the time they rented the truck, and they were unaware that Capps owned the truck they were renting.
Given these elements of proof, the Court concludes that there are questions of fact as to whether Lowe's was an agent for Capps. And, given the issue of agency that must await determination by the fact finder, it is premature for this Court to determine application of the Graves amendment.
Furthermore, at this time, the Court cannot, as a matter of law, conclude that Capps had no duty of care to the plaintiff. Although, the court may or may not conclude upon all proof presented at trial, that there was a relationship between Capps and these plaintiffs, or between Capps and Lowe's such that "the defendant's relationship with either the torfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm; and that the specter of limitless liability is not present," (Mtr of New York City Asbestos Litig. at 494), given that there are questions of fact concerning agency, no such conclusion can be reached at this time.
Capps' motion for summary judgment is denied. Plaintiffs' cross motion for summary judgment is also denied.
The foregoing constitutes the Opinion, Decision and Judgment of this Court.
SO ORDERED.
Dated: August 19, 2009.
s/________________________________
W. Patrick Falvey
Acting Justice Supreme Court
Yates County
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
