        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

291
CA 12-01517
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


WILLIAM A. CHAMBERS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MELANI C. EVANS AND MATTHEW TOUSLEY,
DEFENDANTS-APPELLANTS.


LAW OFFICE OF KEITH D. MILLER, LIVERPOOL (KEITH D. MILLER OF COUNSEL),
FOR DEFENDANTS-APPELLANTS.

STANLEY LAW OFFICES, LLP, SYRACUSE (KEITH R. YOUNG OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Jefferson County (Hugh
A. Gilbert, J.), dated November 14, 2011. The order denied the motion
of defendants for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff, an automobile mechanic, commenced this
action seeking to recover damages for injuries he sustained while he
was servicing a vehicle owned by defendant Melani C. Evans, which was
brought to plaintiff’s place of employment, Cheney Tire, Inc. (Cheney
Tire), by defendant Matthew Tousley, to have its dash face plate
replaced. In switching out the face plate, plaintiff apparently
caused electrical issues with the vehicle’s fuel gauge. As plaintiff
was disassembling the dashboard to recheck the fuel gauge, he noticed
that the standard transmission vehicle was equipped with a remote car
starter. Shortly thereafter, the vehicle unexpectedly started,
dragged plaintiff for a distance, and then ran him over. In the
complaint, as amplified by the bill of particulars, plaintiff alleged,
inter alia, that Tousley negligently failed to warn him and/or Cheney
Tire that the vehicle was equipped with a car starter, and that
Tousley “negligently started the vehicle without the knowledge or
permission of Cheney Tire . . . or any of [its] employees.”

     Contrary to the contention of defendants, we conclude that
Supreme Court properly denied their motion for summary judgment
dismissing the complaint. “Under general tort rules, a person may be
negligent because he or she fails to warn another of known dangers or,
in some cases, of those dangers [of] which he [or she] had reason to
know” (Schumacher v Richards Shear Co., 59 NY2d 239, 246; see Quinonez
v Manhattan Ford, Lincoln-Mercury, Inc., 62 AD3d 495, 497; Yousuf v
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                                                         CA 12-01517

Nowak, 306 AD2d 894, 895). We conclude that, under well-settled tort
principles, defendants had a duty to warn plaintiff and/or Cheney Tire
that their standard transmission vehicle was equipped with a remote
car starter (see Schumacher, 59 NY2d at 246; Yousuf, 306 AD2d at 895;
cf. Quinonez, 62 AD3d at 496-497). Defendants’ own submissions
established that they were aware of the risks posed by the existence
of a remote car starter on a standard transmission vehicle and of the
precautions necessary to reduce those risks. Defendants each
testified at their respective depositions that, at the time the
vehicle was purchased, the salesperson specifically told defendants
that it had been equipped with a remote car starter, and advised them
that it was necessary to place the vehicle in neutral and to apply the
emergency brake before activating the remote starter. Evans testified
that, even before she purchased the vehicle, she was aware of those
necessary precautions because she had friends who owned standard
transmission vehicles outfitted with remote starters who had activated
the starter while in gear and the vehicle would “smash into
something.” Because of that risk, Tousley testified that, whenever he
brought the vehicle to Cheney Tire for servicing, he “always told them
there was a car starter in it, make sure you leave it in neutral and
put the emergency brake on it.”

     Contrary to defendants’ contention, we conclude that they failed
to establish as a matter of law that the danger was open and obvious
or that plaintiff was “fully aware” of the danger (Theoharis v Pengate
Handling Sys. of N.Y., 300 AD2d 884, 885). Plaintiff testified that
he did not notice the starter box while he was replacing the dash face
plate, which took approximately 90 minutes. It was not until
plaintiff removed the lower dash plate in order to check the fuel
gauge that he observed “a massive bunch of wires going to a box [and]
just thought it had to be a car starter.” The accident occurred
within a few minutes of plaintiff’s observation, and he testified that
he “didn’t have a chance to do [any]thing” prior to the accident.

     We reject defendants’ further contention that plaintiff’s
experience and training relieved them of any duty to warn plaintiff of
the existence of the remote car starter. Although plaintiff was a
certified auto mechanic with over 20 years of experience, including
experience with standard transmission vehicles, he testified that
remote car starters should not be installed on standard transmission
vehicles and, indeed, he believed that it was “against the law” to do
so. We thus conclude that defendants failed to establish that
plaintiff, based upon his training and experience, was “fully aware of
[the] specific hazard” posed by the car starter (id.), i.e., that the
vehicle could start while in gear without the clutch being depressed
(cf. id. at 885-886; Czerniejewski v Steward-Glapat Corp., 236 AD2d
795, 796).

     Defendants’ reliance on Sam v Town of Rotterdam (248 AD2d 850, lv
denied 92 NY2d 804) is misplaced. There, upon delivering a police
vehicle to a car repair shop for repairs to its anti-lock braking
system, a police officer advised the service personnel that the
vehicle’s anti-lock brake light flashed intermittently. As an
employee of the shop was driving the vehicle into the service area,
                                 -3-                           291
                                                         CA 12-01517

the brakes failed, causing the vehicle to strike the injured
plaintiff, a brake technician (id. at 850). The plaintiffs alleged
that the defendant was negligent in “failing to make [the shop] aware
of the dangerous and defective condition of the vehicle’s braking
system” (id. at 851). In affirming the order granting the defendant’s
motion for summary judgment dismissing the complaint, the Third
Department concluded that the defendant’s duty to warn was “limited to
known defects” inasmuch as “a customer seeking repair work has no
legal obligation to diagnose the problem for the repair facility, the
purported expert in the field” (id. at 852). Further, the defendant
established that the repair facility “had been informed of all
problems concerning the vehicle,” and the plaintiffs “came forward
with no evidence identifying the actual cause of the brake failure or
giving rise to an inference that [the] defendant was or should have
been aware of the defective condition that caused the brakes to fail”
(id.).

     Here, by contrast, defendants were fully aware of the allegedly
dangerous condition, i.e., the presence of a remote car starter on
their standard transmission vehicle, and the repairs they were seeking
were wholly unrelated to the starter. Moreover, although Tousley
testified that he notified an employee of Cheney Tire that the vehicle
was equipped with a remote starter and that it should be left in
neutral with the emergency brake on, plaintiff submitted a work order
and invoices from the date of the accident that contain no such
instructions. In addition, Tousley testified that the owner of Cheney
Tire yelled at him immediately after the accident that there was “a
car starter in the vehicle and we didn’t know.” We thus conclude that
where, as here, a vehicle has been modified or altered in a way that
poses a danger to a person servicing the vehicle of which the
vehicle’s owner has reason to know and that danger is not readily
apparent, the owner of the vehicle has a duty to warn service
personnel of the danger (see Yousuf, 306 AD2d at 895; see generally
Higgins v Mason, 255 NY 104, 109; Brzostowski v Coca-Cola Bottling
Co., 16 AD2d 196, 202).

     Finally, we conclude that there is an issue of fact whether
Tousley retained possession of the key fob containing the remote
starter while plaintiff was servicing the vehicle and, if so, whether
he negligently activated the starter, thereby causing the accident
(see generally Johnson v Yarussi Constr., Inc., 74 AD3d 1772, 1773;
Murphy v Omer Constr. Co., 242 AD2d 964, 966). Although Tousley
denied that he possessed the key fob at the time of the accident,
plaintiff testified that the keys to the vehicle were on the passenger
seat of the vehicle when the accident occurred and that there was no
fob attached to the keys.




Entered:   March 22, 2013                       Frances E. Cafarell
                                                Clerk of the Court
