Young v. Atlantic Richfield Co.

Abrams, J.

(dissenting). I dissent from the result reached by the court. The court assumes that Arco was negligent in failing to post the sign an “attendant will pump gas,” but then concludes that any negligence on the part of Arco was not the proximate cause of Lloyd Young’s accident.1 I do not believe the court needs to assume negligence because it is clear, on the *845basis of our cases defining the duty of a landowner to maintain premises in a reasonably safe condition and the duty of a seller of a product to warn of dangers inherent in the use of its product, that Arco violated its duty to warn the plaintiffs’ son concerning the manner in which mini-serve gasoline was to be distributed.2 See Back v. Wickes Corp., 375 Mass. 633, 640-641 (1978); Schaeffer v. General Motors Corp., 372 Mass. 171, 173-174 (1977); Mounsey v. Ellard, 363 Mass. 693, 708-709 (1978). But, more importantly, I believe that the risk that a customer who left his automobile to pump gas would be injured by a third party was reasonably foreseeable from Arco’s negligent failure to warn or instruct its customers as to the meaning of mini-serve.

The Restatement (Second) of Torts § 442B, at 469 (1965), states that, “[wjhere the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability . . . .” The court has said that a first wrongdoer will not be excused from liability by the act of a third party who intervenes and contributes to the injury, if the act should have been foreseen.3 Jesionek v. Massachusetts *846Port Auth., 376 Mass. 101, 105 (1978). See Mullins v. Pine Manor College, 389 Mass. 47, 62 (1983). The scope of Arco’s duty and the act which should have been foreseen does not include a duty to foresee this particular accident, but it does include a duty to act reasonably to protect customers against the possibility of being struck by a motor vehicle. In the circumstances of this case, it was reasonably foreseeable that an accident would happen at a mini-serve pump because customers did not understand that they should not get out of their vehicles — either to pump gas or to seek out a gas station attendant to find out what mini-serve meant. Evidence was presented that customers did not understand what mini-serve meant because these stations were extremely uncommon at the time of this accident. Santilli testified that many customers pumped their own gas at the mini-serve pump because they thought mini-serve meant self-serve. Moreover, Santilli stated that, until he entered the gas station business, he did not appreciate the hazards associated with other vehicles at a gas station. The plaintiffs’ son, by pumping his own gas, was exposed to the foreseeable risk of harm that he would be injured by another vehicle at the gasoline station. In order to reach its result the court assumes that the sign an “attendent will pump gas” would not have been read or heeded. On the contrary, Arco’s failure to give any warning or instructions “permits the inference that it would have alerted the user to the danger and forestalled the accident.” Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 349 (1978). Thus, the conduct of Arco, in failing to supply a sign, was a substantial factor in bringing about the harm which occurred here.

While there is always some risk of harm at a gas station, be it from the presence of a highly flammable substance or from the presence of many vehicles in a small area, the failure to warn or instruct customers concerning the mini-serve program increased this risk of the harm which incurred here. Customers were outside of their vehicles and exposed to these dangers in a situation where they could have remained in their vehicles and waited for an attendant, had they realized that the attendant pumped the gas. The law does not require that *847the “precise manner in which the harm occurs ... be foreseen.” Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 798 (1987). See Michnik-Zilberman v. Gordon’s Liquor, Inc., 390 Mass. 6, 12 (1983); Luz v. Stop & Shop, Inc., 348 Mass. 198, 204 (1964). Moreover, the particular manner in which the harm occurs is not material if the general danger to which the plaintiff was exposed should have been foreseen by the defendant. Lawrence v. Kamco, Inc., 8 Mass. App. Ct. 854, 858 (1979). Because questions of causation, proximate and intervening, present issues for the jury to decide, see, e.g., Michnik-Zilber-man, supra at 12; Mullins, supra at 58, I believe the court errs by deciding, as a matter of law, that any negligence of Arco was not the proximate cause of the plaintiffs’ injuries. On the basis of our cases, the issue of proximate cause presented an issue for the jury to decide. See, e.g., Solimene v. B. Grauel & Co., KG, 399 Mass. 790 (1987); Michnik-Zilberman, supra; Mullins v. Pine Manor College, 389 Mass. 47 (1983); Jesionek v. Massachusetts Port Auth., 376 Mass. 101 (1978); Luz v. Stop & Shop, Inc., supra; Wallace v. Ludwig, 292 Mass. 251 (1935); Lane v. Atlantic Works, 111 Mass. 136 (1872).

The court also concludes that Arco had no duty to warn its customers to be alert for other automobiles in the area because the danger posed by automobiles should have been obvious to the plaintiffs’ son. I disagree. Again, we must view the evidence on this issue in the light most favorable to the plaintiffs. Poirier v. Plymouth, 374 Mass. 206, 212 (1978). As already noted, Santilli stated that, prior to entering the gas station business, he did not appreciate the dangers posed by other vehicles at the gas station. Moreover, in training employees in the safe dispensing of gas, Arco instructed them to be alert for vehicles in the area. Finally, a warning of this sort was included on the self-service pumps. Arco did not consider the danger presented by other vehicles to be so obvious that it was unnecessary to warn both employees and the public. Cf. Kalivas v. A.J. Felz Co., 15 Mass. App. Ct. 482, 487 (1983) (jury could find that a warning given to they public which was not as extensive as that given to salesmen rendered product defec*848tive). Given that Arco itself realized that individuals dispensing gas may not appreciate the dangers posed by other automobiles, it is also error for the court to take this issue from the jury and decide, as a matter of law, that the dangers associated with other automobiles in the gas station are obvious.

An obvious or a known danger requires not only knowledge of the activity or the condition, but also appreciation of the danger, including the probability and the gravity of the threatened harm.4 See Restatement (Second) of Torts § 343A comment b (1965). It is important to look to the exposure an individual has had with the particular circumstances to determine whether the individual is “fully conscious of the dangers that are present.” Mullins v. Pine Manor College, 389 Mass. 47, 52 (1983). Clearly, the victim’s exposure to the dangers presented was minimal. He had never pumped gas before. He was not old enough to drive. In fact, he was having difficulty replacing the gas cap at the time the accident occurred. Whether the victim could appreciate the dangers creates an issue for the jury, not the court.

In addition, as comment f of the Restatement (Second) of Torts § 343A (1965) notes, there are situations in which a possessor of land should anticipate that a dangerous condition will cause harm to another regardless of the obviousness of the danger. “Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” Restatement (Second) of Torts § 343A comment f, at 220 (1965). In this case, even if the danger posed by other vehicles in the gas station was obvious, the plaintiffs’ son was distracted by the difficulty he was encountering replacing the gas cap and was not aware of the need to protect himself from the danger. *849Santilli’s testimony reflects that he was aware that the plaintiffs’ son did not appreciate the danger posed by others in the gas station. While a general understanding that motor vehicles are dangerous might be obvious as a matter of law, the danger presented by pumping gasoline and thereby becoming involved in an automobile accident is not so obvious that it does not even present an issue for the jury. The jury could properly have based their finding of negligence on this ground alone.5 I dissent.

I agree with the court’s statements of our standard of review. In reviewing the denial of the motion for judgment notwithstanding the verdicts, we must consider whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.” Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). See Poirier v. Plymouth, 374 Mass. 206, 212 (1978). Moreover, whether a particular warning, or whether the omission of a particular warning, satisfies the duty to convey the nature and extent of the danger “is almost always an issue to be resolved by a jury; few questions are ‘more appropriately left to a common sense lay judgment than that of whether a written warning gets its message across to an average person. ’ Ferebee v. Chevron Chem. Co., 552 F. Supp. 1293, 1304 (D.D.C. 1982).” MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 140, cert. denied, 474 U.S. 920 (1985). It does not appear, however, that the court applied these principles.

I do not agree with the court’s conclusion that the cases defining the duty to warn about dangerous products are not controlling on the facts of this case. See ante at 843 n.5. The court defines the duty imposed in duty to warn cases very narrowly, by stating that a manufacturer need only warn of the dangers of a product. Id. We have stated that a manufacturer also must warn about use of a product in a particular setting. See Back v. Wicks Corp., 375 Mass. 633, 640-641 (1978); Schaeffer v. General Motors Corp., 372 Mass. 171, 173-174 (1977). I believe our law concerning the duty to warn is instructive in this case because, if a product is dispensed on particular premises, part of the analysis as to whether the premises are reasonably safe is whether the distribution of the product is occurring in a manner which does not jeopardize the safety of the area. If there are dangers inherent in the use or distribution of a particular product, in order to maintain reasonably safe premises, a manufacturer or seller must either design around these dangers or warn and instruct users to beware of the possible dangers.

The Restatement (Second) of Torts § 302A comment c (1965) states that “the actor is required to know that there is a certain amount of negligence in the world, and that some human beings will fail on occasion to behave as a reasonable [human being] would behave.”

The court has rejected the rule that, where a product is obviously dangerous, a manufacturer cannot be found liable. Uloth v. City Tank Corp., 376 Mass. 874, 881 (1978). “The law, we think, ought to discourage misdesign rather than encouraging it in its obvious form.” Id., quoting Palmer v. Massey Ferguson, Inc., 3 Wash. App. 508, 517 (1970).

According to the principles expressed in Mounsey v. Ellard, 363 Mass. 693, 708 (1978), Arco had the duty to maintain its property in a reasonably safe condition, in view of all the circumstances. This test of “reasonableness in all the circumstances” permits the jury to determine what burdens of care are unreasonable in light of the expense and difficulty imposed on an owner balanced against the probability and seriousness of the foreseeable harm to others. Id. at 709. Because the evidence concerning the omissions of warnings was sufficient to permit the jury to conclude that Arco had violated its duty to maintain its property in a reasonably safe condition, I do not believe it is necessary to reach the other evidence of Arco’s negligence, including the evidence involving the design of the gas station.