Nodine v. Terpening Trucking Co.

64 A.D.2d 808, 407 N.Y.S.2d 277, 1978 N.Y. App. Div. LEXIS 12653

Opinion

—Judgment unanimously affirmed, with costs. Memorandum: The trial court properly dismissed the action at the close of plaintiffs’ case. While the defendants owed a duty to the plaintiffs to exercise care in the delivery of gasoline into the underground tanks of plaintiffs’ service station, that duty did not extend to the unforeseeable consequence that gasoline would overflow through unused fill pipes which were located some distance away from the point where the delivery of the gasoline into the tanks was then being made through fill pipes designed for that purpose (Palsgraf v Long Is. R. R. Co., 248 NY 339, reh den 249 NY 511; cf. Pulka v Edelman, 40 NY2d 781, 785). The record is devoid of any reason for the spillage and contains no evidence which would support a conclusion that defendants’ employee was or reasonably should have been aware that such spillage would occur. (Appeal from judgment of Onondaga Supreme Court—negligence.) Present—Marsh, P. J., Cardamone, Dillon Hancock, Jr., and Witmer, JJ.