The Appellate Division of New York, First Department, has affirmed the Supreme Court of New York County’s grant of summary judgment in favor of Clark & Fox’s client, BP Products North America, Inc.
In the case captioned, Kim Blackstock v. BP Products North America, Inc., et al., in the Supreme Court of New York County, Plaintiff Kim Blackstock alleged that on March 23, 2014, he tripped and fell on a gas cap at a BP gas station in New York City, New York. Plaintiff claimed to have suffered injuries including a tear in his shoulder cuff, and he also required a disc fusion surgery. Plaintiff brought suit against BP alleging that BP, among other defendants, negligently caused to exist a dangerous and unsafe condition on the premises resulting in severe and serious personal injuries to Plaintiff. In order to prevail against BP, Plaintiff had to demonstrate that the premises were not reasonably safe, that BP was negligent in not keep the premises in a reasonably safe condition, and that this negligence was a substantial factor in causing Plaintiff’s injury.

Upon factual investigation by Clark & Fox, it immediately became clear that the gas station where Plaintiff fell was operated by non-party East Side Gas, Inc. as a BP gas station, pursuant to a Dealer Supply Agreement, with East Side Gas, Inc. as the franchisee and BP as the franchisor. The Dealer Supply Agreement expressly provided that it was the obligation of the franchisee, East Side Gas, Inc., to manage, operate, and maintain the facility.

Clark & Fox moved for and successfully obtained summary judgment on behalf of BP Products North America, Inc. Clark & Fox argued on behalf of BP that the Dealer Supply Agreement between East Side Gas, Inc. and BP did not create vicarious liability on the part of BP as evidenced by documents and deposition testimony demonstrating that BP did not exercise control over the day-to-day operations of its franchisee. Discovery and deposition testimony further demonstrated that BP did not install, modify, or damage the storage tanks or gas cap that caused Plaintiff to fall. Counsel for Plaintiff argued in response that pursuant to the Dealer Supply Agreement BP retained a right to inspect the facility, however the Supreme Court of New York County held that this right to inspect did not obligate BP to maintain the premises. Plaintiff further argued that BP is liable to Plaintiff under principles of agency, alleging that BP held itself out as the operator of the premises, however the Court held that there was insufficient proof to demonstrate such and there was similarly no evidence that Plaintiff relied on such a representation to her detriment. The Supreme Court of New York County therefore granted summary judgment in favor of BP and dismissed Plaintiff’s complaint against BP accordingly.

Counsel for Plaintiff Kim Blackstock then appealed the grant of summary judgment on behalf of BP to the Appellate Division of New York, First Department. Clark & Fox partner Patrick Reilly again successfully represented BP in connection with the appeal. Counsel for Plaintiff argued again on appeal that the Dealer Supply Agreement between BP and East Side Gas, Inc. created vicarious liability on the part of BP. Patrick Reilly argued in response, and the Appellate Division agreed, that under the Dealer Supply Agreement the gas station is an independent contractor responsible for the daily maintenance, management, and operation of the premises, and thus BP cannot be held vicariously liable as a franchisor. Even though the Agreement required the gas station to adhere to certain quality, image and branding standards, and afforded BP certain rights to enter and inspect the premises, this was not enough evidence of the day-to-day control required to give rise to a legal obligation to Plaintiff. Plaintiff’s final argument attempted to assert liability on the part of BP pursuant to the doctrine of special use. The doctrine of special use imposes liability on an abutting landowner when they put part of a public way to special use for their own benefit and exercise control over that public way. Clark & Fox partner Patrick Reilly argued that the doctrine of special use did not apply to BP as the factual record demonstrated that BP was not the owner of the property, nor were they an abutting landowner, and they also did not have the requisite control over the gas cap. The Appellate Division agreed with the arguments made by Patrick Reilly and therefore affirmed the lower court’s grant of summary judgment on behalf of Clark & Fox’s client, BP Products North America, Inc.

Clark & Fox is a firm of experienced lawyers with diverse international practices that focuses on representing the interests of the insurance industry. Information about all of Clark & Fox’s locations, attorneys, and practice areas is available on http://www.clarkfoxlaw.com/.

For more information, please contact:
John M. Clark, CEO/President: jclark@clarkfoxlaw.com