Opinion
February 2, 1990
Appeal from the Supreme Court, Oswego County, Hurlbutt, J.
Present — Dillon, P.J., Denman, Green, Balio and Lawton, JJ.
Order and judgment unanimously affirmed without costs. Memorandum: On July 5, 1984, plaintiff Dorothy Coyer, an employee of Alcan Aluminum Corp. (Alcan), suffered serious injuries when a forklift truck operated by James Davis, a fellow employee, backed over her right leg. Davis, who had lost the vision in his right eye at the age of 14, held a New York State class 3 chauffeur's license. In August 1979, he was assigned by Alcan to attend a half-day training program on the operation of a forklift. The program instructor was an employee of defendant Syracuse Supply Company, a forklift distributor, and the training materials used in the program were provided by defendant Hyster Company, a forklift manufacturer. Plaintiffs allege that because Davis lacked vision in one eye, defendants should not have trained and approved him as a forklift operator. At the close of plaintiffs' proof, the court found that defendants owed no duty to plaintiff Dorothy Coyer, and dismissed the complaint. We affirm.
In order for plaintiffs to succeed in this negligence action, it must be first demonstrated that defendants owed them a legal duty (D'Amico v Christie, 71 N.Y.2d 76, 87; Eiseman v State of New York, 70 N.Y.2d 175, 187; Turcotte v Fell, 68 N.Y.2d 432, 437). "In the absence of duty, there is no breach and without a breach there is no liability" (Pulka v Edelman, 40 N.Y.2d 781, 782, rearg denied 41 N.Y.2d 901). It is the responsibility of the courts in fixing the orbit of duty "`to limit the legal consequences of wrongs to a controllable degree'" (Strauss v Belle Realty Co., 65 N.Y.2d 399, 402, quoting Tobin v Grossman, 24 N.Y.2d 609, 619).
It cannot be found here that defendants owed a legal duty to plaintiffs. The proof demonstrates conclusively that Alcan selected the employees who would participate in the training program and made all decisions concerning assignment of employees as forklift operators. Defendants did not participate in selecting trainees and did not undertake to monitor a trainee's job performance. The record clearly establishes that Alcan did not relinquish control of its employees to defendants. Thus, there is no relationship of defendants with either Davis or plaintiffs which imposes a duty upon defendants to protect plaintiffs from the harm alleged here. "A duty to prevent such negligence should not be imposed on one who does not control the tort-feasor" (Pulka v Edelman, supra, at 784; cf., Canipe v National Loss Control Serv. Corp., 736 F.2d 1055, cert denied 469 U.S. 1191). It follows that the court properly dismissed the complaint.
Thus viewed, there is no need to address the other issues raised by plaintiffs on appeal. Nevertheless, we note our agreement with the trial court that plaintiffs failed to demonstrate that any act or omission of defendants was the proximate cause of plaintiff Dorothy Coyer's injuries.