Werner v. Sun Oil Co.

In an action to recover damages for personal injuries predicated on negligence and strict products liability, plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County (Burke, J.), dated September 8, 1982, as dismissed his complaint. Judgment affirmed insofar as appealed from, without costs or disbursements. This appeal emanates from an accident which occurred at approximately 9:00 or 10:00 p.m. on the night of January 13, 1978 when plaintiff attempted to clear away ice from the glass [569] face or bezel of a gasoline dispensing pump. The pump was manufactured by defendant Wayne Pump Company, owned by defendant Sun Oil Company and leased to defendant MacDougall, doing business as Walt’s Service Station. The subject pump, like the other six at that service station, had two windows covering the mechanism which displayed the gallonage dispensed and the cost per sale. Plaintiff’s accident occurred when he exerted force to clear the windows of the gasoline pump he was using of a residue of ice and snow which had deposited on the pump in such manner as to obscure his vision of the reading. The window face shattered as plaintiff applied pressure to it, causing his hand to go into the pump. Plaintiff conceded that he had exerted a certain amount of pressure on the glass which had caused it to break. Plaintiff had been working at Walt’s Service Station during his senior year of high school. At the time of his accident, he had been employed by that station for approximately four and one-half months and had had no prior experience as a gas station attendant. The trial court dismissed the complaint at the conclusion of plaintiff’s case. We conclude that dismissal was an appropriate remedy inasmuch as plaintiff failed to establish a prima facie case although afforded a fair and complete opportunity to do so. The evidence presented was not sufficient to make out a prima facie case in either strict products liability or negligence. Plaintiff did not show that there is an unreasonable risk that the window glass will break when ice is removed from its surface. On the contrary, there was testimony from plaintiff’s consulting engineer that frost can certainly be removed from window glass without causing it to break. That expert offered no opinion as to whether or not the use of glass in the facings of gasoline dispensing pumps was reasonably safe. Moreover, plaintiff presented no evidence whatsoever regarding past breakages of pump windows. With respect to plaintiff’s own behavior, he admitted that he never attempted to use hot water to clear off the ice although it was readily available in the rest rooms of the station. Plaintiff also testified that he never went around to the other side of the pump to ascertain whether or not he could see through the transparent facing on that side. Nor did he think of looking for an ice scraper or a spray can of de-icing compound, although there was testimony that the service station did have spray deicer for sale. Furthermore, the record is barren of any explanation as to why any of the other six pumps available for use at the service station could not have been used to service the customer [570] upon whom plaintiff had been waiting at the time of his accident. Nor do we subscribe to the argument advanced by our dissenting brother that the proffered testimony of one of plaintiff’s expert witnesses, petroleum distributor George Wisser, was improperly curtailed on the ground that he was not qualified to testify concerning industry practices. The question of whether a particular witness possesses sufficient skill, knowledge or experience to testify as an expert in a given field is subject to the discretion of the trial court and its determination will not be disturbed unless it is erroneous as a matter of law or constitutes an abuse of discretion (Tarlowe v Metropolitan Ski Slopes, 28 NY2d 410, 414; Meiselman v Crown Hgts. Hosp., 285 NY 389, 398-399; Molinari v Conforti & Eisele, 54 AD2d 1113). The record herein reveals no such error of law or abuse of discretion. As a petroleum distributor, Wisser bought products from major and independent oil companies and distributed or sold the products to his own gas stations or to those of others. At the time of trial, Wisser enterprises owned or leased approximately 60 service stations. Wisser unequivocally admitted, however, that his stations utilized pumps which did not have transparent facings. Although the court afforded plaintiff the opportunity to establish a foundation for this expert witness, plaintiff failed to establish that he was familiar with anything beyond the limited scope of his own business. In essence, plaintiff failed to show that the pumps with which he was familiar were similar to the one on which plaintiff sustained his injury. Having thus failed to prove that Wisser was knowledgeable in the design or manufacture of gasoline pumps, so as to qualify him to testify on the matter of design defect, plaintiff’s use of this witness was properly curtailed. We have considered plaintiff’s remaining contentions and find them to be without merit. Thompson, Weinstein and Niehoff, JJ., concur.