HENNIGAN v. JOHNSON

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Supreme Court, Appellate Division, Fourth Department, New York.

Wendy A. HENNIGAN and Thomas J. Hennigan, Appellants, v. Daniel JOHNSON, Respondent.

Decided: December 31, 1997

Before DENMAN, P.J., and GREEN, PINE, BALIO and FALLON, JJ. Lipsitz, Green, Fahringer by John Collins, Buffalo, for Plaintiffs-Appellants. Sliwa & Lane by Michael Lancer, Buffalo, for Defendant-Respondent.

This action seeks to recover damages for a broken leg sustained by Wendy A. Hennigan (plaintiff) during her attempt to kick her way out of a camper owned by defendant.   Her husband's action is derivative.   Plaintiffs appeal from an order granting defendant's motion for summary judgment dismissing the complaint in its entirety.   Plaintiffs contend that defendant owed a duty to plaintiff;  that defendant breached that duty;  that the injury was foreseeable;  that the injury was proximately caused by defendant's negligence;  and that plaintiff's own conduct was not a supervening cause of plaintiff's injuries.

 We conclude that defendant is entitled to judgment as a matter of law on the issues of duty and foreseeability.   The question whether one party owes a duty of reasonable care to another is a question of law for the courts (see, Di Ponzio v. Riordan, 89 N.Y.2d 578, 583, 657 N.Y.S.2d 377, 679 N.E.2d 616;  De Angelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406).  “Duty is essentially a legal term by which we express our conclusion that there can be liability * * *  It tells us whether the risk to which one person exposes another is within the protection of the law” (De Angelis v. Lutheran Med. Ctr., supra, at 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406).   “Courts resolve legal duty questions by resort to common concepts of morality, logic and consideration of the social consequences of imposing the duty” (Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., 90 N.Y.2d 606, 612, 665 N.Y.S.2d 17, 687 N.E.2d 1300).

 We conclude that defendant had no duty to guard against the remote possibility that plaintiff would break her leg in attempting to kick her way out of the camper.   The injuries sustained were unforeseeable and completely attenuated from the alleged negligence of defendant in failing to maintain his camper in good condition.   As a matter of law, defendant cannot be held liable for this unforeseeable series of occurrences or for the unforeseeable injuries that resulted (see, Di Ponzio v. Riordan, supra;  Danielenko v. Kinney Rent A Car, 57 N.Y.2d 198, 204-205, 455 N.Y.S.2d 555, 441 N.E.2d 1073;  Martinez v. Lazaroff, 48 N.Y.2d 819, 820, 424 N.Y.S.2d 126, 399 N.E.2d 1148;  Ventricelli v. Kinney Sys. Rent A Car, 45 N.Y.2d 950, 952, 411 N.Y.S.2d 555, 383 N.E.2d 1149, mot. to amend remittitur granted 46 N.Y.2d 770, 413 N.Y.S.2d 655, 386 N.E.2d 263).

Order unanimously affirmed without costs.

MEMORANDUM: