Myers v. Fir Cab Corp.

OPINION OF THE COURT Fein, J. The summary judgment granted to plaintiffs on liability only should be affirmed with costs for the reasons stated by Justice Alfred M. Ascione at Special Term. We would add that defendants have failed to submit any evidentiary facts sufficient to raise a triable issue. In opposing a motion for summary judgment even in a negligence action, it must be shown that there are evidentiary facts requiring a trial (Horowitz v Konner, Inc., 67 AD2d 38). We are all aware of the strictures against summary judgment in negligence cases. Curiously enough, Andre v Pomeroy (35 NY2d 361), upon which the dissent relies, was a case in which a summary judgment was granted. Perti [30] nent to our case is the following language from that case (p 364): “There is, in short, no absolute prohibition against granting summary judgment in such cases * * * “Normally, if the facts are uncontested summary judgment is appropriate. However, this is not always so in negligence suits, because even when the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances. This can rarely be decided as a matter of law. “Thus as a practical matter summary judgment continues to be a rare event in negligence cases. But this does not mean that the court is obliged, on policy grounds, to ferret out speculative issues ‘to get the case to the jury,’ where the trial may disclose something the pretrial proceedings have not.” The rule of that case and others is that in negligence cases the plaintiff will be entitled to summary judgment “only in cases in which there is no conflict at all in the evidence, the defendant’s conduct fell far below any permissible standard of due care, and the plaintiff’s conduct either was not really involved (such as with a passenger) or was clearly of exemplary prudence under the circumstances.” (4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.03, p 32-153, quoted in Andre v Pomeroy, supra, p 365.) In essence, then, summary judgment is not precluded in a negligence case in which the facts are undisputed and where as a matter of law the conduct of the defendant is negligent. The undisputed facts here come from the mouth of the defendant, both in his examination before trial and in his affidavit in opposition to the motion. He stated, in substance, that when he observed that the engine of his automobile was overheated, he pulled the automobile curbside in mid-Manhattan on Seventh Avenue between West 22nd and West 21st Streets at 8:00 p.m., turned the motor off, and raised the hood of the car. With the assistance of an unnamed pedestrian, he attempted to remove the radiator cap. The engine was so hot that it was necessary to use a rag in removing the cap. Steam and water were allowed to [31] escape, scalding and burning the infant plaintiff who was walking along the sidewalk en route from a store. She observed only that two men were standing by the motor of the car from which the steam and boiling water escaped. Defendant claims that he waited 20 minutes to one half an hour after stopping the car before attempting to remove the radiator cap. Although he testified the temperature gauge did not indicate overheating when he stopped the car, there is no testimony that he looked at it again after allegedly waiting 20 minutes to one-half hour to allow the heat in the radiator to dissipate. He stated he never saw any steam escaping before removing the cap while the engine was still hot. This is the sole defense in this action, plainly insufficient as a matter of law. The physical facts of which the court may take judicial notice are such that after 20 minutes to one-half hour the water or water and coolant in the radiator of an overheated car will cool down so that there will be no escaping steam and hot water. It does not lie in the mouth of the defendant to attack his own credibility by way of defense. Moreover, it is palpable on this record that defendant sought to loosen the cap curbside at a time when there was plainly a substantial risk known to him that steam and hot water would escape. Defendant’s own statement that he used a rag to remove the cap demonstrates his own recognition it was still hot. This was negligence as a matter of law. It is simply incredible that boiling water and steam would still have been present had the engine been turned off for 20 minutes to one-half hour. Thus, the sole explanation given by the defendant demonstrates negligence as a matter of law unless we are to say that there is a triable issue as to whether a reasonable man would unscrew the cap of an overheated motor beside the curb on a traveled city street. Even in a negligence case summary judgment must be granted where the plaintiff’s prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable, if not rebutted by other evidence (Foltis, Inc. v City of New York, 287 NY 108; Colonial Sand & Stone Co. v Tracy Towing Line, 16 AD2d 645; Horowitz v [32] Konner, Inc., 67 AD2d 38, supra). Defendants have totally failed to come forward with any competent proof to rebut the inescapable inference that the driver’s negligence caused the plaintiff’s injuries. The proof of defendant’s negligence comes out of his own mouth. One who allows steam to escape onto a public passageway is chargeable with negligence which, if unexplained, entitles the plaintiff to judgment (Wilson v American Bridge Co., 74 App Div 596; Wynn v Parisi, 24 Misc 2d 933). The dissent suggests that the function of the court upon a motion for summary judgment is limited to issue finding, not issue determination. No one disputes that proposition. The question is whether on the undisputed facts the conduct of the defendant met a standard of reasonable care which can be accepted. Pfaffenbach v White Plains Express Corp. (17 NY2d 132), relied on by the dissent supports the summary judgment under review here. A car on the wrong side of the road was involved in a collision. The plaintiff passenger thus made out a prima facie case. In such circumstances there is an obligation upon the defendant to come forward with an explanation. In the absence of an explanation, or when such explanation demonstrates that the care allegedly exercised by the defendant falls below the permissible standard of reasonable care, the plaintiff is entitled to judgment. Ugarriza v Schmieder (46 NY2d 471) is not to the contrary. Plainly there were questions of fact as to when the unpainted concrete divider separating two sections of the parking lot became visible during the night, and whether the conduct of the driver in applying the brakes met a reasonable standard of care. Palpably the facts there raised a question of whether the driver was negligent. More to the point is Horowitz v Konner, Inc. (supra), where this court applied the doctrine of res ipsa loquitur in granting summary judgment. There a bus left the highway and overturned in the center mall area on a snow-covered road. Absent “a satisfactory explanation for the incident” the plaintiff passenger was held entitled to summary judgment (supra, p 39). In principle our case is similar. The event was of a kind which ordinarily would not occur in the absence of some [33] one’s negligence. It was caused by an instrumentality within the exclusive control of the defendant. It was not due to any voluntary action or contribution upon the part of the plaintiff (Corcoran v Banner Super Market, 19 NY2d 425, 430; Cameron v Bohack Co., 27 AD2d 362, 364). A further recital of the facts is not necessary to show the applicability of res ipsa here. In the absence of an explanation compatible with reasonable care, liability ensues. There is a complete lack of evidence to rebut the inference of negligence (Horowitz v Konner, Inc., supra, pp 41-42). Similar is Flood v Travelers Vil. Garage (66 AD2d 726), where the garage attendant left a vehicle parked on the garage ramp in reverse gear. The vehicle slipped and ran into the street, injuring plaintiff. The majority of this court stated: “We take notice, since we deal here with natural physical forces, that the only sure way to guard against the results of such failure on an incline is to provide blockage against gravity.” As in that case, we deal here with natural physical forces. The only sure way to guard against steam and scalding water escaping and injuring a pedestrian, is to drive the car into a service station for help, or to wait until the motor is cold. The failure on the part of this defendant to do either is palpably negligent, leaving no issue except that of damages. The court is not “obliged, on policy grounds, to ferret out speculative issues ‘to get the case to the jury,’ where the trial may disclose something the pretrial proceedings have not.” (Andre v Pomeroy, 35 NY2d 361, 364, supra.) Accordingly, the order, Supreme Court, New York County (Alfred M. Ascione, J.), entered on December 28, 1982, granting plaintiffs’ motion for summary judgment on liability, should be affirmed, with costs.