Nodine v. Terpening Trucking Co.

Appellate Division of the Supreme Court of New York

Nodine v. Terpening Trucking Co.

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 7, 1978

StatusPublished

Cited by3 cases

This text of 64 A.D.2d 808 (Nodine v. Terpening Trucking Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Nodine v. Terpening Trucking Co., 64 A.D.2d 808, 407 N.Y.S.2d 277, 1978 N.Y. App. Div. LEXIS 12653 (N.Y. Ct. App. 1978).

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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.

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—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.

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Bluebook (online)

64 A.D.2d 808, 407 N.Y.S.2d 277, 1978 N.Y. App. Div. LEXIS 12653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nodine-v-terpening-trucking-co-nyappdiv-1978.

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