Boehm v. Barnaba

Plaintiffs Henry R Boehm and Gordon L. Pebler were struck by a car when they were standing in a public street reading an easel-type sign posted by defendant Uncle Sam Boat Tours, Inc. (hereinafter USBT) on its sidewalk. After the commencement of this personal injury action against defendant Anthony J. Barnaba as the driver of the car, defendant Isadora M. Strabo, as the owner of the car, and USBT, USBT moved for summary judgment proffering the pleadings, bills of particulars, deposition transcripts and the affidavit of Ronald Thomson, its general manager and owner, to demonstrate that it could not be negligent as a matter of law because the accident occurred beyond the bounds of its property where it had no control. Supreme Court denied the motion by finding, among other things, that USBT had a duty to provide its patrons with a reasonably safe approach to its ticket booth and schedule sign. This appeal followed.

USBT asserts that it had no duty to protect Boehm and Pebler from an injury on a public roadway. With “ ‘^[1]lability for a dangerous condition on property . . . predicated upon occupancy, ownership, control or a special use^[1] of such premises’ ” (Kozak v Broadway Joe’s, 296 AD2d 683 , 684 [2002], quoting Balsam v Delma Eng’g Corp., 139 AD2d 292 , 296 [1988], lv dismissed and denied 73 NY2d 783 [1988]), plaintiffs contend that while USBT placed its sign on its own property, its positioning required that patrons utilize the public street in order to read it. To determine whether a duty exists to protect people from a risk of harm under these circumstances, we balance numerous factors, including “ ‘the reasonable expectation[ ] of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk . . . and public policies affecting the expansion or limitation of new channels of liability’ ” (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222 , 232 [2001], quoting Polka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579 , 586 [1994]; accord 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280 , 288-289 [2001]).