Martinez v. Lazaroff

-In consolidated actions to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Kings County, dated February 28, 1978, which denied their motion for summary judgment. Order reversed, on the law, without costs or disbursements, and motion granted. The issue to be decided in this personal injury case is whether the complaint should have been dismissed and summary judgment granted to defendants on the ground that the alleged conduct of defendants was not the proximate cause of the infant plaintiff’s injuries, as a matter of law. Special Term, citing Pagan v Goldberger (51 AD2d 508), denied defendants’ motion and held that the issue of proximate cause was for the jury. We disagree with the conclusion of Special Term. In our view, this is a case where "The range of reasonable apprehension is * * * a question for the court” (Palsgraf v Long Is. R. R. Co., 248 NY 339, 345) and we hold, as a matter of law, that the conduct of the defendants was not the proximate cause of the infant plaintiff’s injuries. Since this case involves a motion by defendants for summary judgment, plaintiffs’ allegations must be accepted as true. Plaintiffs commenced the instant action against the defendants Lazaroff and defendant Dunmar Realty alleging that they owned and managed 1720 Nostrand Avenue, Brooklyn, New York, wherein plaintiffs were tenants. They further alleged that defendants breached their duty to supply their tenants with hot water and that the infant plaintiff, Harold Martinez, sustained severe and permanent injuries due to defendants’ violation of applicable codes, statutes, regulations and ordinances, and due to defendants’ careless and negligent maintenance and management of the building. Specifically, plaintiffs alleged that approximately two weeks prior to the accident, the boiler in the apartment building broke down and no hot water was available to the tenants. The defendants had notice of the condition, but the boiler had not been fixed by May 3, 1975. During this two-week period, the infant plaintiff’s father would heat a pot of hot water on the kitchen stove and carry it through the apartment to the bathroom to be used for cleanliness and sanitation. In the early afternoon of May 3, 1975, as the father was carrying the pot of boiling water past the door of his son’s bedroom on his way from the kitchen to the bathroom, the infant plaintiff came out of the bedroom and collided with the pot. The pot tilted and hot water spilled onto the infant, seriously burning him. The instant action ensued. In contrast to the decision of Special Term, we are of the view that the principles of Pagan v Goldberger (supra) mandate a dismissal of the complaint. In Pagan v Goldberger (supra), a three-year-old infant was injured in his apartment when he fell against a piece of sharp metal on a radiator. The metal piece had been exposed when a knob on top was removed from the radiator by an employee of the landlord preparatory to repair. The landlord had knowledge of the condition for several months. The trial court dismissed the complaint at the close of plaintiffs’ case on the ground that plaintiffs had failed to prove "both proximate cause and foreseeability as elements of the claim of negligence on the part of the defendant” (Pagan v Goldberger, supra, p 509). In reversing and granting a 875 new trial, this court, per Mr. Justice Hopkins, made the following introductory remarks regarding proximate cause (Pagan v Goldberger, supra, pp 509-510): "Negligence as a legal concept traditionally includes both proximate cause and foreseeability as tests of liability. The common law recognizes fault as the primary ground of responsibility to another for injury; and proximate cause and foreseeability represent attempts to measure fault. In most cases the focus is directed on the kind of conduct which is claimed to have been injurious, and the jury is called upon to determine, upon varying evidence, what the nature of the conduct really was, and whether the injury really was sustained as a result of the conduct. Nevertheless, unusual or freakish accidents occur, in which the defendant’s conduct is not directly related in the continuum of time or space or personal status to the plaintiffs injury (see, e.g., Palsgraf v Long Is. R. R. Co., 248 NY 339; Matter of Polemis [1921], 3 KB 560; Overseas Tankship [U.K.] Ltd. v Morts Dock & Eng. Co. [1961] A C 388). In these instances, the use of the test of proximate cause and foreseeability serves to place reasonable limits on liability as a matter of public policy (cf. Ryan v New York Cent. R. R. Co., 35 NY 210, 217; Homac Corp. v Sun Oil Co., 258 NY 462). As Holmes said (The Common Law, pp 93-96), an intolerable burden would be cast on human activity if every voluntary act was committed at one’s peril. The definition of proximate cause has been elusive, probably because the public policy underlying the concept cannot be described other than in general terms. Courts have attempted to find rational formulations for the rule of limitation of liability by resort to distinction between cause and condition, the 'but for’ test, or the relationship between principal and intervening causes (see Prosser, Law of Torts [4th ed], §42, pp 244-249). All of these attempts have not been completely satisfactory and Prosser, in the end, agrees with the observation of Street that proximate cause must 'be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent.’ (Prosser, p 249, quoting from 1 Street, Foundations of Legal Liability, 110.)” To aid in the application of the concept of proximate cause where "The doctrinal sweep [of the decisions] is so broad that a flexibility of approach, almost intuitive in nature, must be used” (Pagan v Goldberger, supra, p 511), Mr. Justice Hopkins proposed the following guidelines as "tools of analysis” (pp 511-512): "1. The test of status—is there an existing legal relationship between the parties? * * * 2. The test of temporal duration—is the occurrence of the injury tied to the claimed negligent act or omission within a reasonable lapse of time? * * * 3. The test of spatial relation—is the occurrence of the injury close or far in distance from the point of the claimed negligent act or omission? * * * 4. The test of foreseeability—is the claimed negligent act or omission reasonably predictable as a cause of the occurrence of the injury? * * * 5. The test of public policy—is there an identifiable policy which either protects the victim of the injury or forbids liability for the injury?” In holding that the answers to these five tests were in plaintiff’s favor, the court distinguished Rivera v City of New York (11 NY2d 856). In Rivera, an infant plaintiff standing on the edge of a bathtub and attempting to reach a light cord, lost his balance and fell into hot water present in the tub, thereby receiving serious burns. The City of New York was alleged to have been negligent in failing to repair a leak in the hot water faucet and other defects in the plumbing, which resulted in the condition that scalding hot water accumulated in the tub. The Court of Appeals held (p 857) that the failure to repair was not the proximate cause of the accident, since the intervening act of the loss of balance of the plaintiff perched on the bathtub could not have been foreseen. The court in 876 Pagan contrasted Rivera by stating (Pagan v Goldberger, supra, p 512): "Here, the fall of the infant plaintiff did not occur from an unusual circumstance, such as in Rivera, where the bathtub was being used as a platform to reach a greater height—a purpose foreign to its accustomed utility. Here, the fall of the infant plaintiff occurred while he was walking or running within the apartment. As the infant was three years old—one of seven children—the defendant, in his status as landlord, could reasonably expect that falls of infant occupants normally happen. To leave a sharp edge of a stem exposed, so that a person falling under these circumstances would be in a position to sustain injury, constituted conduct which the triers of the facts might find to be negligent, and the negligence so found to be so directly connected with the injury that the requirement of proximate cause is satisfied”. In our view, the tests of Pagan cannot be uniformly answered in favor of plaintiffs herein as they were in Pagan and the complaint should have been dismissed, as a matter of law. In the case at bar, the child did not come into contact immediately with the dangerous or defective condition created by the landlord as the infant did in Pagan. The broken boiler was totally remote from the cause of the accident. Rather, it was the father’s act in carrying scalding water through the apartment and the collision which must be considered the proximate cause of the injuries. This intervening act, which was an "unusual or freakish” accident (see Pagan v Goldberger, supra, p 509), could not be controlled or even reasonably foreseen by the defendants. In this regard, the carrying of the scalding water and the collision between the child and father was no more foreseeable than the intervening act of "the slipping of a wet boot while the child balanced on the curved edge of the bathtub” in Rivera v City of New York (supra, p 857). Under these circumstances, to hold that the instant accident was a foreseeable consequence of defendants’ negligence "is to stretch the concept of foreseeability beyond acceptable limits” (Ventricelli v Kinney System Rent A Car, 45 NY2d 950, 952). Accordingly, the complaint should be dismissed. Latham, J. P., Damiani and Suozzi, JJ., concur.