Opinion
December 13, 1973
Appeal from the Erie Special Term.
Present — Del Vecchio, J.P., Moule, Cardamone, Simons and Henry, JJ.
Order unanimously affirmed, with costs. Memorandum: The four-year-old infant plaintiff was injured when she was struck by defendant William's automobile as she was returning to her home across the street after having purchased an ice cream cone at defendant Hamad's ice cream vending truck. Defendant Hamad appeals from an order at Special Term which denied his motion for summary judgment dismissing the action against him. In our opinion the motion was properly denied. The depositions of the parties show that the infant plaintiff was Hamad's business invitee to whom he owed a duty of providing a safe means of ingress to the vending truck and a safe exit from it (Prosser, Law of Torts [4th ed.] § 61, pp. 391, 392) and of using reasonable care to protect her from harm ( Gallagher v. St. Raymonds R.C. Church, 21 N.Y.2d 554, 557), anticipating and taking into account her inability to understand or appreciate the danger and to protect her against it (Restatement, 2d, Torts, § 343B, Comment b). "Under elementary principles it was the duty of the defendant operator of the truck to exercise ordinary care to provide a reasonably safe place for this child who was his business invitee. To that end, he was required to exercise ordinary care to select a position on the road where he could stop his vehicle and dispense his merchandise to the plaintiff without exposing [her] to danger." ( Vought v. Jones, 205 Va. 719, 724; see, also, Thomas v. Goodies Ice Cream Co., 13 Ohio App.2d 67; Jacobs v. Draper, 274 Minn. 110; Mackey v. Spradlin, 397 S.W.2d 33 [Ky.]; Neverez v. Thriftimart, 7 Cal.App.3d 799; Garza v. Perez, 443 S.W.2d 855, 860 [Tex.]; Hastings v. Smith, 223 Tenn. 142, 148-150; Ann. 74 ALR 2d 1056.)