Flood v. Travelers Village Garage, Inc. , 411 N.Y.S.2d 324 ( 1978 )

Order, Supreme Court, New York County, entered March 9, 1978, affirmed, without costs or disbursements. Order of the same court, entered April 21, 1978, denying renewal, affirmed, without costs or disbursements. On the very factual statement in the dissent, we believe that the result reached at Special Term was correct. A factor to be considered in determining what is or is not negligence is, axiomatically, foreseeability. When a driver parks a car on an incline, it is reasonably foreseeable that a mechanical device such as a reverse gear might fail with or without human intervention, particularly when the force of gravity is involved. This would be a "cause * * * to be anticipated.” Such a standard would be expected to have applicability to a "car jockey”, i.e., an employee of a parking garage to whose care customers’ vehicles are consigned. We take notice, since we deal here with natural physical forces, that the only sure way to guard against the results of such failure on an incline is to provide blockage against gravity. The generally acceptable way to accomplish this is described in the dissent, though dismissed as "not the exclusive way”. It is, however, the only certain way, and failure to utilize it in these circumstances constituted negligence in our view. Plaintiff, having made out a case of negligence prima facie, it becomes, in the now classic phrase, defendants’ duty to lay bare their proofs. There are none. The jockey did no more than state his unfounded opinion that the car must have slipped out of gear. Defendants’ expert never examined the vehicle; he saw only motion papers. There is no reason in this open-and-shut case to deny summary judgment. Concur— Murphy, P. J., Fein and Markewich, JJ.