Opinion
File No. 25717
The alleged negligence of the defendant driver in parking a car on an incline without adequately braking it involved a realizable and unreasonable risk of harm to persons who, as the named plaintiff did, might attempt to stop it while it was rolling down the incline. Whether the plaintiff's conduct was justified or constituted a new intervening cause of her injuries would be a question of fact for the trier. Although the complaint did not allege in so many words that anyone was in danger of injury from the rolling car, it adequately stated a cause of action in favor of the named plaintiff. While the names of the parties might create the impression that the plaintiff R was the husband of the named plaintiff, the complaint failed to allege that or to suggest any reason why the defendants should answer to him for the expenses alleged to have been incurred by him as a result of the injuries. Consequently, it could not be said that the complaint stated a cause of action in favor of R.
Memorandum filed March 30, 1960
Memorandum on demurrer. Demurrer overruled except as to plaintiff Robert Green.
Suisman, Shapiro Wool, of New London, for the plaintiffs.
Brown, Jewett Driscoll, of Norwich, for the defendants.
For the purposes of the demurrer it may be assumed, as the complaint alleges, that on June 16, 1958, in the afternoon, the plaintiff Caroline Green drove her automobile into the driveway at the easterly end of a parking area in a so-called shopping plaza in Groton. At said time she observed an unoccupied motor vehicle rolling down an incline in said parking area, moving in her direction. Plaintiff pulled her vehicle sharply to the left, brought it to a stop, left her automobile and proceeded to the unoccupied moving vehicle, opened the door, entered the vacant car and brought it to a stop. In so doing plaintiff Caroline Green received certain injuries described in the complaint. The unoccupied vehicle had previously been negligently parked by the defendant Virginia Britton in said parking area near the First National Store entrance in said shopping plaza, on an incline, with its emergency brake in a defective condition, and when the emergency brake was not adequate to maintain said vehicle in a stationary position when parked on an incline, without due care left her said parked car unoccupied and unwatched, with the result that it rolled down the incline in said parking lot in the general direction of the entrance to the same and particularly in the direction of the plaintiff as she drove her car in the easterly driveway.
The demurrer maintains that on the above facts no duty was owing from the defendants to the plaintiffs, and that said facts alleged do not state a violation of a duty, if any, owing by the defendants to the plaintiffs.
It is not alleged in the complaint in so many words that the plaintiff was in danger, or believed she was in danger, or that anyone was in danger. However, the duty to use due care is bounded by the foreseeable range of danger. Harper James, Law of Torts § 18.8. The negligent failure to properly brake an automobile in a parking lot, on an incline, involves a realizable and an unreasonable risk of causing harm to a class of persons of which the plaintiff was a member. Those using the parking lot and those approaching the parking lot in its driveway were among the persons affected.
In their brief defendants urge that the plaintiff Caroline Green is a complete volunteer, and that the so-called "rescue doctrine" is not before the court. This claim is not well founded. The demurrer admits the well-pleaded facts that the Britton automobile was negligently parked, not braked, and that it rolled down the incline in the parking lot, in the direction of the plaintiff's car. The plaintiff responded to this situation. "Danger invites rescue." "The act whether impulsive or deliberate is the child of the occasion." ( Cardozo, J.) Wagner v. International Ry. Co., 232 N.Y. 176, 181; Zeechin v. Cornelio, 17 Conn. Sup. 20; Restatement, 2 Torts §§ 442-445.
Whether the plaintiff's conduct was justified or constituted a new intervening cause of her injuries is a question of fact for the trier.