You are here: / / PLAINTIFF, A PERMISSIVE DRIVER OF DEFENDANT’S TRUCK, WAS INJURED...
,

PLAINTIFF, A PERMISSIVE DRIVER OF DEFENDANT’S TRUCK, WAS INJURED WHEN HE OPENED THE WATER RESERVOIR FOR THE ENGINE AND IT “EXPLODED,” APPARENTLY BECAUSE THE ENGINE OVERHEATED DUE TO THE POSITION OF THE SNOW PLOW AND THE CONSEQUENT BLOCKING OF AIR FLOW TO THE ENGINE; THERE ARE QUESTIONS OF FACT WHETHER THE INCIDENT WAS FORESEEABLE, WHETHER PLAINTIFF WAS THE SOLE PROXIMATE CAUSE, AND WHETHER DEFENDANT OWED PLAINTIFF A DUTY OF CARE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined there were questions of fact whether the incident was foreseeable, whether plaintiff’s conduct was the sole proximate cause of the incident, and whether defendant owed plaintiff a duty of care. Plaintiff was driving defendant’s truck when everything on the dashboard turned red and plaintiff pulled over to check out the problem. When plaintiff opened the water reservoir cap the reservoir “exploded” injuring him. Plaintiff was told by the police officer who stopped to help that the position of the snow plow on the front of the truck was blocking air flow to the engine (apparently causing the engine to overheat). The Fourth Department determined there were questions of fact whether the incident was foreseeable, whether plaintiff’s conduct was the sole proximate cause of the incident, and whether defendant owed plaintiff, a permissive user of defendant’s truck, a duty of care:

… [T]here are triable issues of fact whether plaintiff’s conduct was a normal and foreseeable consequence of the truck’s mechanical issues … . * * *

… [D]efendant failed to establish as a matter of law that plaintiff’s conduct, in investigating the cause of the malfunction and checking the water level in the reservoir, was of an unreasonable character, was done in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, or was done with conscious indifference to the outcome. * * *

The owner of a vehicle can be liable to permissive guests, users, or occupants if the owner knew or should have known of defects in the vehicle … . Bialecki v HBO Bldrs. W., Inc., 2023 NY Slip Op 05907, Fourth Dept 11-17-23

Practice Point: Here plaintiff, a permissive driver of defendant’s truck, was injured when he checked the engine water reservoir and it “exploded.” Apparently the engine overheated because the snow plow blocked air flow to the engine. There were questions of fact whether the incident was foreseeable, whether plaintiff was the sole proximate cause of the incident, and whether defendant owed plaintiff a duty of care.

 

You might also like
Failure to Serve Complaint Upon Demand Required Dismissal of the Action
DEFENDANT MOVED TO SUPPRESS THE WEAPON SEIZED FROM DEFENDANT’S VEHICLE AFTER A TRAFFIC STOP ON THE GROUND THERE WAS NO PROBABLE CAUSE FOR THE STOP; THE POLICE CLAIMED THE REASON FOR THE STOP WAS DEFENDANT’S FAILURE TO WEAR A SEATBELT; SURVEILLANCE VIDEOS WHICH WOULD HAVE SHOWN WHETHER DEFENDANT WAS WEARING A SEARBELT WERE NOT PRESERVED; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AN ADVERSE INFERENCE CHARGE IN CONNECTION WITH THE SUPPRESSION MOTION; MATTER REMITTED (FOURTH DEPT).
APPEAL OF THE STATUTORY SPEEDY TRIAL ISSUE FORECLOSED BY THE GUILTY PLEA AND THE WAIVER OF APPEAL; THE STATEMENT-SUPPRESSION ISSUE FORECLOSED BY THE WAIVER OF APPEAL; THE CONSTITUTIONAL SPEEDY TRIAL ISSUE WAS ABANDONED (FOURTH DEPT).
DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION.
DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF; THEREFORE THE JUDGE WAS NOT REQUIRED TO CONDUCT A SEARCHING INQUIRY TO DETERMINE WHETHER DEFENDANT’S REQUEST WAS KNOWING, VOLUNTARY AND INTELLIGENT; A TWO-JUSTICE DISSENT DISAGREED (FOURTH DEPT).
INDICTMENT DID NOT PROVIDE SUFFICIENT NOTICE OF THE TIME PERIODS IN TWO COUNTS, MOTION FOR A TRIAL ORDER OF DISMISSAL OF THOSE TWO COUNTS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
A CORPORATION OPERATING A SKILLED NURSING FACILITY MAY BRING A PLENARY ACTION BASED UPON THE DENIAL OF MEDICAID BENEFITS FOR ONE OF ITS RESIDENTS; NO NEED TO EXHAUST ADMINISTRATIVE REMEDIES AND NOT SUBJECT TO THE FOUR-MONTH STATUTE OF LIMITATIONS (FOURTH DEPT).
Violation of Zoning Ordinance Precludes Property Tax Exemption

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF’S HUSBAND, THE INSURED, WAS DRIVING WHEN PLAINTIFF WAS SERIOUSLY... THE TOWN ZONING BOARD SHOULD NOT HAVE INTERPRETED THE TERM “SINGLE FAMILY...