Galasso v. Wegmans Food Markets, Inc.

Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered June 15, 2007 in a personal injury action. The order denied the motion of defendants for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from is affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when the construction sign that she was attempting to erect fell on her as the result of a gust of wind. According to plaintiff, defendants’ passing tractor-trailer was traveling at a rate of 10 to 15 miles per hour over the speed limit and created the gust of wind. Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint. We reject the contentions of defendants that they did not owe any duty to plaintiff and that the risk of injury to plaintiff was not foreseeable. With respect to the issue of duty, it is well settled that “[t]he existence and scope of an alleged tortfeasor’s duty is, in the first instance, a legal question for determination by the courts . . . [and that] the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived” (Sanchez v State of New York, 99 NY2d 247, 252 [2002]; see Di Ponzio v Riordan, 89 NY2d 578, 583 [1997]; Palsgraf v Long Is. R.R. Co., 248 NY 339, 344 [1928], rearg denied 249 NY 511 [1928]). Here, the tractor-trailer driver employed by defendants owed a duty of care to operate the tractor-trailer in a safe and prudent manner, and that duty extended to construction workers such as plaintiff located on or adjacent to the road. With respect to the issue of the foreseeability of the risk of injury, we conclude that the accident was “within the class of reasonably foreseeable hazards that the duty [owed to plaintiff] exists to prevent” (Sanchez, 99 NY2d at 252). [1146] All concur except Smith, J.E, and Peradotto, J., who dissent and vote to reverse in accordance with the following memorandum.