Green v. Britton

160 A.2d 497, 22 Conn. Super. Ct. 71, 22 Conn. Supp. 71, 1960 Conn. Super. LEXIS 101

• Court: Connecticut Superior Court
• Decided: March 30, 1960
• Docket: File 25717
• Status: Published

Opinion

Troland, J.

For the purposes of the demurrer it may he assumed, as the complaint alleges, that on June 16, 1958, in the afternoon, the plaintiff Caroline Green drove her automobile into the drive way at the easterly end of a parking area in a so-called shopping plaza in Groton. At said time she observed an unoccupied motor vehicle rolling down an incline in said parking area, moving in her direction. Plaintiff pulled her vehicle sharply to the left, brought it to a stop, left her automobile and proceeded to the unoccupied moving vehicle, opened the door, entered the vacant car and brought it to a stop. In so doing plaintiff Caroline Green received certain injuries described in the complaint. The unoccupied vehicle had previously been negligently parked by the defendant Virginia Britton in said parking area near the First National Store entrance in said shopping plaza, on an incline, with its emergency brake in a defective condition, and when the emergency brake was not adequate to maintain said vehicle in a stationary position when parked on an incline, without due care left her said parked car unoccupied and unwatched, with the result that it rolled down the incline in said parking lot in the general direction of the entrance to the same and particularly in the direction of the plaintiff as she drove her car in the easterly driveway.

The demurrer maintains that on the above facts no duty was owing from the defendants to the plaintiffs, and that said facts alleged do not state a violation of a duty, if any, owing by the defendants to the plaintiffs.

It is not alleged in the complaint in so many words that the plaintiff was in danger, or believed she was in danger, or that anyone was in danger. However, the duty to use due care is bounded by the foreseeable range of danger. Harper & James, Law of Torts § 18.8. The negligent failure to properly brake an automobile in a parking lot, on an incline, involves a realizable and an unreasonable risk of causing harm to a class of persons of which the plaintiff was a member. Those using the park ing lot and those approaching the parking lot in its driveway were among the persons affected.

In their brief defendants urge that the plaintiff Caroline Creen is a complete volunteer, and that the so-called “rescue doctrine” is not before the court. This claim is not well founded. The demurrer admits the well-pleaded facts that the Britton automobile was negligently parked, not braked, and that it rolled down the incline in the parking lot, in the direction of the plaintiff’s car. The plaintiff responded to this situation. “Danger invites rescue.” “The act whether impulsive or deliberate is the child of the occasion.” (Cardozo, J.) Wagner v. International Ry. Co., 232 N.Y. 176, 181; Zeechin v. Cornelio, 17 Conn. Sup. 20; Restatement, 2 Torts §§ 442-445.

Whether the plaintiff’s conduct was justified or constituted a new intervening cause of her injuries is a question of fact for the trier.

The demurrer is overruled as to the plaintiff Caroline Creen.

The complaint alleges that the plaintiff Robert Creen has expended large sums of money for medical care, etc., because of the injuries sustained by Caroline Creen. It nowhere appears in the complaint that he is any relation of Caroline Creen and no reason is suggested as to why defendants should answer to him. It may be that Robert Creen is the husband of Caroline Creen, but the court is not warranted in assuming facts not alleged.

The demurrer is sustained as to Robert Creen.