Madden v Ceglio
Annotate this CaseDecided on June 4, 2007
Supreme Court, Westchester County
Karen Madden and Mark Madden, Plaintiffs,
against
Michael Ceglio and Renee Patterson, Defendants.
10251/05
Law Offices of Gambeski & Ambrose
Attys. For Deft. Ceglio
925 Westchester Avenue, 4th fl.
White Plains, New York 10604
Worby Groner Edelman LLP
Attys. For Pltfs. 11 Martine Avenue
White Plains, New York 10606
Paganini, Herling, Cioci, Cusumano & Farole
Attys. For Deft. Patterson
1979 Marcus Avenue
Lake Success, New York 11042-1002
Mary H. Smith, J.
This is an action to recover for personal injuries allegedly sustained by plaintiff Karen Madden on November 22, 2002. At approximately 10:00 p.m. on that date, defendants Ceglio and Patterson, then a Sleepy Hollow High School junior and sophomore [FN1], respectively, were walking together on the sidewalk along North Broadway, in Tarrytown, having left their high school following a theater performance. The sidewalk had been wet from rain earlier in the day. Although Ceglio had testified that the sidewalk had been lit by street lamps, Patterson had testified that it was dark in the sidewalk area in front of the T.F. Andrews store. Ceglio had asked Patterson if she had wanted a piggy back ride, whereupon Patterson had jumped up onto his back. Ceglio had testified that at that time he stood approximately 5 feet, seven inches tall and weighed approximately 165 pounds. Ceglio had been wearing sneakers at the time. According to Ceglio, Patterson, who had testified that at the time she stood approximately 5 feet, seven inches tall and had weighed approximately 130 pounds, was not too heavy for him. Ceglio had carried Patterson about half a block, at a normal pace.[FN2] At a certain point, when they had been distanced approximately three feet away from store windows, Ceglio slipped and, unable to regain his balance, he and Patterson struck the glass window of the T.F. Andrew Furniture & Carpet store, falling through it. Ceglio had testified that he did not know what had caused him to slip. They both had lain inside the store for about a minute; broken glass of various sizes was strewn about them. The police had arrived shortly thereafter. Patterson had testified that after she had exited the store, she had looked at the sidewalk right outside the window where she had fallen and had observed a wet "mat of leaves."
Plaintiff Karen Madden had testified that at the time of this accident she had been an [*2]employee of T.F. Andrews & Carpet store. She had been called to the store at approximately 10:00 p.m., on November 22, 2002, by the police. Upon her arrival, she had observed one of the store front windows, measuring "[b]etween 11 and 15-feet wide and high," broken. She had been informed by the two or three police officers present that two people had gone through the glass. Plaintiff had opened the store door and turned on the lights; she then made a telephone call to the manager to have him obtain material to board up the window. At a certain point, about 15 minutes to a half hour after she had arrived at the store, plaintiff stated that she had been just standing in the store, 3 or 4 feet away from the broken window, when a large piece of the remaining broken glass suddenly fell from the window frame and "crashed down on [her] arm."
Plaintiff commenced this negligence action and defendants presently are both moving for summary judgment dismissing the complaint, arguing that they had no duty to plaintiff, who was not at the scene at the time of the accident and whose injury, a half hour later, was not foreseeable.
Plaintiff opposes the motion, arguing that defendants have not sustained their burden in the first instance, as there is no evidence that defendants were not negligent as a matter of law when the unrefuted facts establish that Ceglio had carried Patterson, approximately equal to his own height and "not insignificant weight on his shoulders while walking on wet leaves ..." Plaintiff contends that defendants' affirmative conduct of piggyback carrying, at night, on a wet sidewalk, on wet leaves, had resulted in their owing plaintiff a reasonable duty of care and that they had breached that duty. Plaintiff submits that her injuries were proximately caused by defendants' negligent conduct and that the issue of foreseeability presents a jury question.
"To establish a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and that the breach was a proximate cause of the plaintiff's injury. (Citations omitted)." Demshick v. Community Housing Management Corp., 34 AD3d 518 (2nd Dept. 2006). While a duty of care is said to exist where the plaintiff's interests are entitled to legal protection against the defendant's conduct, see Vetrone v. Ha Di Corp., 22 AD3d at 837, 803 NYS2d 156, quoting Prosser, Torts § 53 at 325 [4th ed.], the existence and scope of an alleged tortfeasor's duty is a legal question for determination by the Court in the first instance. See Darby v. Compagnie Air France, 96 NY2d 343, 347 (2001); Di Ponzio v. Riordan, 89 NY2d 578 (1997). Thus, while generally the issue of foreseeability should be decided by the finder of fact, see Bingham v. Louco Realty, LLC, 36 AD3d 845 (2nd Dept. 2007), it is for the Court to determine as a matter of law when "there is only a single inference that can be drawn from the undisputed facts." Mei Cai Chen v. Everprime 84 Corp., 34 AD3d 321 (1st Dept. 2006).
In analyzing questions regarding the scope of an individual actor's duty, Courts look to whether the relationship of the parties is such as to give rise to a duty of care, see, e.g., Waters v. New York City Hous. Auth., 69 NY2d 225; Pulka v. Edelman, 40 NY2d 781, 783 (1976), whether the plaintiff was within the zone of foreseeable harm, see, e.g., Palsgraf v. Long Is. R.R. Co., 248 NY 339 (1928), and whether the accident was within the reasonably foreseeable risks. Di Ponzio v. Riordan, supra , at 583. "The determination of the existence and scope of a duty may involve, not only considerations of the wrongfulness of a defendant's conduct, but also an examination of a plaintiff's own informed estimate of the possible risks, viewed in light of what people may reasonably expect of one another." Vetrone v. Ha Di Corp., 22 AD3d 835, 837 (2nd [*3]Dept. 2005). It is settled that a plaintiff need not demonstrate the foreseeability of the precise manner in which the accident occurred or the precise type of harm produced in order to establish the foreseeability component of his tort claims. See Id. at 584-585. Rather, a person is at fault only when the injury-producing occurrence is one that could have been anticipated; the line is drawn "between remote possibilities and those that are reasonably foreseeable because [n]o person can be expected to guard against harm from events which are ... so unlikely to occur that the risk ... would commonly be disregarded.' (Citations omitted)." Id. at 583. Thus, the "risk of injury as a result of defendant's conduct must not be merely possible, it must be natural or probable." Pinero v. Rite Aid of NY, 294 AD2d 251, 252 (1st Dept. 2002).
Applying the foregoing principles to the facts at bar, and after careful consideration of the record and the parties' respective arguments, the Court grants defendants' motion and cross-motion for summary judgment. This action is hereby dismissed.
While certainly there are hazards reasonably foreseeable from defendants' piggyback conduct, which may well include the participants falling through a storefront glass window and injuring persons in proximity to them, whether through bodily contact or flying broken glass, here, plaintiff had not been injured as a result of physical contact with defendants or flying glass caused by defendants' initial contact with the window. This Court finds as a matter of law that plaintiff's unfortunate injury of having been struck by the remaining broken window glass which suddenly had released from its frame while she stood within striking distance thereof, and which incident had occurred almost an hour after the initial breaking of the glass, was too remote and attenuated from any reasonably foreseeable risks created by defendants' piggyback activity to invoke. The Court further notes that plaintiff had arrived at the store and had herself observed the then existing condition of the broken window; same was in plain view, open, obvious, and readily observable. Had plaintiff herself exercised due care by merely keeping a safe distance from the window, her injury likely would have been avoided.
Under all of the circumstances presenting, no liability may properly attach to these defendants.
Dated: June 4, 2007
White Plains, New York
_________________________________
Mary H. Smith
J.S.C.
Footnotes
Footnote 1:Defendant Patterson was 15 years of age at the time of the incident and 17 years of age at the time this action was commenced.
Footnote 2:Patterson had testified that Ceglio had carried her approximately "a block and a half."
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