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February 23, 1995

REPUBLIC INSURANCE COMPANY as subrogee of WILLIE GOLATT and MARION GOLATT, Plaintiff, against CATHERINE MICHEL, et al., Defendants.

The opinion of the court was delivered by: JOAN M. AZRACK

 AZRACK, United States Magistrate Judge:

 This case was referred to the undersigned by the Honorable Jack B. Weinstein, and was subsequently reassigned to the Honorable David Trager, United States District Court Judge for the Eastern District of New York. Thereafter, on June 15, 1994, this case was referred on consent to the undersigned for all purposes pursuant to 28 U.S.C. § 636(c).

 Defendants now move for summary judgment on three distinct grounds. Defendants argue that (1) there is no admissible evidence to demonstrate the cause of the fire; (2) that matches and/or cigarette lighters are not inherently dangerous instrumentalities which require extraordinary precautions on the part of a parent or grandparent of a four year old; and (3) even assuming the fire was started by the infant plaintiff, at the age of four years he was non sui juris and not responsible for his actions. (Defs.' Mot. for Summ. J., pp. 6-7). *fn1" For the reasons stated below, defendants' motion is denied in its entirety.


 On April 14, 1992 defendant Catherine Michel owned and resided at 113-24 208th Street, Queens Village New York. Ms. Michel's husband, Gerrard Michel, her daughter, Alma Whitt and her great-grandchildren Tymic Moore and Catherine Moore also resided at that address. At that time, plaintiff's subrogors, Willie Golatt and Marion Golatt, lived next door at 113-26 208th Street. On April 14, 1992, a fire originated on defendants' premises and spread to the Golatt's neighboring house causing plaintiff, Republic Insurance Company to pay a claim of damages in the amount of $ 126,058.89.

 The New York City Fire Department (hereinafter "FDNY") responded to and eventually extinguished the fire. Subsequently, Fire Marshal Higgins conducted an investigation into the cause of the fire and found that the fire originated in the rear of the house and was caused by a "child playing with lighter." (FDNY Report, Apr. 14, 1992). Marshal Higgins' report also indicated that:

Tymik [sic] is the grandson of Alma Witt [sic] and lives in the fire building. Tymik was interviewed in the presence of his grandmother. Tymik stated that he was in the bedroom on the bed playing with a cigarette lighter and the bed caught fire. He then went into the kitchen and told his grandmother there was a fire.

 (FDNY Report, Apr. 14, 1992). Moreover, Marshal Higgins testified at deposition that he eliminated all other possible causes of the fire, i.e. acts of God, incendiary devices, and electrical devices and that he had no doubt in his mind that Tymic started the fire based upon his investigation and his twenty minute long interview with Tymic with the assistance of Alma Whitt. (Higgins Dep., pp. 19-21, 27). Marshal Higgins recalled that Tymic appeared to have a speech problem but did not recall any "rambling" by Tymic. (Higgins Dep., pp. 49, 52).

 Subsequently, Fire Marshal Guarnieri continued the FDNY's investigation of the fire and noted that Catherine Michel stated that Tymic had an untreated speech defect. Fire Marshal Guarnieri concluded that Tymic

really did not know the consequences of playing with the cigarette lighter. Tymik has a speech defect and at times starts to talk about what was asked of him, but then just goes off and appears to be rambling. The problem appears to be that it is very difficult to understand Tymik due to his speech defect. Tymik did admit to playing with the lighter and the undersigned did determine that there was a lighter in the bedroom. Tymik did not understand most questions and it was very difficult to communicate with him. The family was asked to call the undersigned if the problem occurs again, but it is believed that this was just a curiosity fire. The interview was conducted at another location. (FDNY Report, July 15, 1992 PP 2, 4).

 Subsequently, William Nolan of Connell, Nolan Associates, Ltd., a fire investigation business contacted by defendants, investigated the cause of the fire. Mr. Nolan examined the interior of the house and eliminated potential causes of the fire such as the electrical and heating systems. (Nolan Report, May 26, 1992, pp. 3-6). Mr. Nolan interviewed Catherine Michel who indicated, inter alia, that both Gerrard Michel and Monica Moore were smokers at the time of the fire and had been smoking in the premises prior to the fire. *fn3" (Nolan Report, p. 9). According to Mr. Nolan, Catherine Michel also stated that she did not know the cause of the fire but that the fire marshal had said it was "accidental, electrical." (Nolan Report, p. 13). Mr. Nolan also contacted the FDNY and received a copy of the FDNY reports filed in this case. (Nolan Report, p. 14). Mr. Nolan concluded that Tymic was responsible for the fire based upon the burn patterns, an examination of all potential heat sources, and information gained from the FDNY reports. (Nolan Report, pp. 15-16). *fn4"

  Depositions of Catherine Michel, Gerrard Michel, Alma Whitt, Willie P. Nolan, Fire Marshal Higgins, Marion Golatt were taken in this action. These depositions produced inconsistent information regarding the fire and the ensuing investigations. Specifically, Ms. Golatt testified that she had witnessed Tymic throwing matches out of a window in his house, and that she had informed Catherine Michel, Alma Whitt and Monica More of these incidents. *fn5" (Golatt Dep. pp. 29-32). The members of the Michel household, however, deny that Tymic had a propensity to play with fire or that Ms. Golatt informed them of any prior incidents in which Tymic played with matches. Additionally, Alma contends that neither she nor Tymic were interviewed by the FDNY after the fire, but Alma did testify that she spoke with Marshal Higgins (Whitt Dep. pp. 26-27) and Gerrard testified that he heard Tymic had talked to the FDNY. (G. Michel Dep. pp. 52-53).

 These depositions also revealed the fact that both Gerrard and Alma were cigarette smokers at the time of the fire and that they used lighters in their smoking habits. (C. Michel Dep. p. 19; G. Michel Dep. pp. 29-80; Whitt Dep. pp. 13-14). Moreover, Gerrard, Catherine and Alma all stated that they ...

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