the underlying object is a dangerous instrument.
Dangerous instruments are those things which in their normal operation are implements of destruction, but certain instruments which are not inherently dangerous may become so in the hands of a child. Young v. Dalidowicz, 92 A.D.2d 242, 460 N.Y.S.2d 82 (N.Y. App. Div., 2d Dep't 1983). See Nolechek, 46 N.Y.2d at 337, 385 N.E.2d at 1271, 413 N.Y.S.2d at 344 (noting that a pencil may become a dangerous instrument under certain circumstances). The determination of whether a particular item is dangerous in the hands of a child "depends upon the nature and complexity of the allegedly dangerous instrument, the age, intelligence and experience of the child, and his proficiency with the instrument." Bottillo v. Poette, 152 A.D.2d 840, 544 N.Y.S.2d 47 (N.Y. App. Div., 3rd Dep't 1989); see Alessi v. Alessi, 103 A.D.2d 1023, 478 N.Y.S.2d 396 (N.Y. App. Div., 4th Dep't 1984). This analysis balances the duty owed by parents to third parties, with the commonly known fact that "children might, at various points in their development, be permitted, and properly so, to use bicycles, lawn mowers, power tools, motorcycles, or automobiles, all of which are, in some contingencies, 'dangerous instruments'" Nolechek, 46 N.Y.2d at 338, 385 N.E.2d at 1272, 413 N.Y.S.2d 344.
The types of instruments that have been found to be dangerous in the hands of a young child are cars, motorcycles, motorboats, guns, and BB guns. Acquaviva v. Piazzolla, 100 A.D.2d 502, 472 N.Y.S.2d 704 (N.Y. App. Div., 2d Dep't), appeal dismissed, 62 N.Y.2d 604, 467 N.E.2d 532, 478 N.Y.S.2d 1023 (1984) (an unlocked car with its windows open was a dangerous instrument); Le Sauvage v. Freedman, 100 Misc. 2d 857, 419 N.Y.S.2d 1018 (N.Y. Civ. Ct. 1979) (motorboat was dangerous instrument in hands of teenage boy); Zellers v. Devaney, 155 Misc. 2d 534, 589 N.Y.S.2d 134 (Sup. Ct., Orange Co. 1992) (BB gun a dangerous instrument as a matter of law, based on cases cited therein). Those items that have been found to not be dangerous instruments in certain circumstances are bicycles, toys, a skateboard, a waterslide, and pizza. Santalucia v. County of Broome, 205 A.D.2d 969, 613 N.Y.S.2d 774 (N.Y. App. Div., 3rd Dep't 1994) (bicycle); Parsons v. Wham-O, Inc., 150 A.D.2d 435, 541 N.Y.S.2d 44 (N.Y. App. Div., 2d Dep't 1989) (waterslide); Young v. Dalidowicz, 92 A.D.2d 242, 460 N.Y.S.2d 82 (skateboard); Keohan v. Di Paola, 97 A.D.2d 596, 468 N.Y.S.2d 218 (N.Y. App. Div., 3rd Dep't 1983) (pizza not a dangerous instrumentality as it was placed on child's lap); Pietrzak v. McGrath, 85 A.D.2d 720, 445 N.Y.S.2d 827 (N.Y. App. Div., 2d Dep't 1981) (seesaw).
Where the record is sufficiently developed to indicate whether an object is indeed dangerous or not, a court may determine as a matter of law that the object is or is not a dangerous instrumentality. See Santalucia, 205 A.D.2d 969, 613 N.Y.S.2d 774 (bicycle ridden by a 5 year old child not a dangerous instrumentality); Geter v. Amrani, 1993 Conn. Super. LEXIS 1423, No. CV 91 0293856S, 1993 WL 198511 (Conn. Super. Ct., May 27, 1993) (toy peg not a dangerous instrument used by an 18 month old child). Where, however, the record is not so developed, the status of the instrumentality is a question of fact left to the trier of fact. See Crounse v. Stimpson Computing Scale Co., 675 F. Supp. 62 (N.D.N.Y. 1987) (meatgrinder); Alessi v. Alessi, 103 A.D.2d 1023, 478 N.Y.S.2d 396 (toy airplane); Jarboe v. Edwards, 26 Conn. Supp. 350, 223 A.2d 402, 403-404 (Conn. Super. Ct., 1966) (status of matches in the hands of a four year old left to jury since the issue had not yet been decided by the Connecticut Supreme Court).
At the heart of this summary judgment motion, is whether a book of matches or a cigarette lighter in the hands of a four years and four month old child is a dangerous instrument. The status of these objects has not been squarely addressed by the New York courts. In the pre-Nolechek decision of Marks v. Thompson, 13 N.Y.2d 1029, 195 N.E.2d 311, 245 N.Y.S.2d 601 (1963), the Court of Appeals affirmed the dismissal of an action where a four year old child injured another child when he ignited papers on the floor of a parked automobile. In the Appellate Division's opinion, the court noted that a lighter was essentially not different from other household articles and appliances in constant daily use "which possess some potential danger but are commonly and necessarily exposed for ready use." Marks v. Thompson, 18 A.D.2d 731, 732, 234 N.Y.S.2d 391, 392 (N.Y. App. Div., 3rd Dep't 1962). Since this decision was pre-Nolechek, it did not employ the analysis presently binding on this Court, nor did the decision classify the lighter as a dangerous or non-dangerous instrument for purposes of a negligent entrustment action.
A review of other jurisdictions reveals that most courts have not addressed this novel issue or have reserved this issue for the trier of fact. See Smith v. George, 178 Ill. App. 3d 1087, 534 N.E.2d 224, 128 Ill. Dec. 204 (Ill. App. Ct., 3d Dist. 1989); Spector v. Neer, 262 So. 2d 689 (Fla. Dist. Ct. App., 3d Dep't 1972); Lumbermens Mutual Casualty Co. v. Quincy Mutual Fire Ins. Co., 220 So. 2d 104 (La. App., 3rd Cir., 1969); Jarboe, 223 A.2d at 403-404 (novel issue of matches used by a 4 year old was left to jury). While it is laudable that few cases exist dealing with the tragedies that ensue when a child plays with matches, the lack of jurisprudence on this subject leaves an unresolved question as to whether a book of matches or a cigarette lighter is a dangerous instrument. Therefore, the determination of whether a cigarette lighter is a dangerous instrumentality is governed by the facts of this case, including but not limited to Tymic's age, maturity, expertise or experience, and physical or mental disabilities. See Bottillo, 152 A.D.2d 840, 544 N.Y.S.2d 47.
Matches and cigarette lighters are by their very nature implements of destruction since they are used for the specific purpose of igniting other objects and their casual misuse could cause serious injury and damage. It is untenable to allege that matches are never dangerous in the hands of a child. Moreover, it is wholly foreseeable that matches or a lighter would cause injury to the public when used by an unsupervised minor. In fact, nationwide campaigns have been waged to alert children to the dangers of playing with fire.
Furthermore, in this case defendants suggest that Tymic had a speech impediment and had a tendency to ramble which may demonstrate a greater inability to understanding warnings about the dangerousness of lighters such that a lighter may be more dangerous in Tymic's hands than another child of his same age. Although defendants argue that matches and cigarette lighters have "utilitarian functions" and need not be secreted away and be kept under lock and key, the Court of Appeals has recognized that benign objects may become dangerous instruments when in the clutches of a young child. See Nolechek, 46 N.Y.2d at 337, 385 N.E.2d at 1271, 413 N.Y.S.2d at 344 (noting a pencil may become a dangerous instrument).
This Court cannot grant summary judgment holding that a book of matches or a cigarette lighter in the hands of Tymic Moore, could not be a dangerous instrument. Similarly, I am unwilling, on the present submissions, to find that a book of matches or a cigarette lighter was certainly a dangerous instrument in the case at bar. The Court cannot determine the status of matches in this case without knowing more about the experience, propensity and intelligence of Tymic Moore. The standard announced in New York requires such an analysis be made but the present record does not avail itself to that analysis. Therefore, defendants' motion for summary judgment must be denied and this issue will be decided by the jury.
C. THE STATUS OF DEFENDANT TYMIC MOORE AS NON SUI JURIS
Defendants also move for summary judgment on the first cause of action against infant defendant Tymic Moore. Defendants argue that Tymic's youth at the time of the fire renders him non sui juris and thus incapable of committing negligence. The status of a child over the age of four is a question of fact which must address the particular child's ability to comprehend danger and care for himself. Defendants have not met their burden of showing the non-existence of a genuine issue of material fact regarding Tymic's status as a non sui juris infant. Therefore, Tymic's status and ability to commit negligence must be decided at trial.
Non sui juris law has matured in the context of contributory negligence claims against infant plaintiffs who were the victims of adult acts of negligence. Generally, in negligence and contributory negligence contexts an infant is not expected to exercise the same degree of care required of an adult, rather, an infant is expected to exercise a level of care commensurate with his age, experience, intelligence and ability. Camardo v. New York State Rys., 247 N.Y. 111, 116, 159 N.E. 879, 880 (1928). An infant, however, may be so young that he is unable to apprehend the existence of danger, take precautions against it and exercise any degree of care for his own safety. The law calls such a child, non sui juris,8 and thus incapable of committing negligence. See Beekman Estate v. Midonick, 44 Misc. 2d 11, 252 N.Y.S.2d 885 (Sup. Ct., N.Y. Co. 1964); Sierra v. Georgiou, 236 N.Y.S.2d 773, 774 (Sup. Ct., Nassau Co. 1962); Verni v. Johnson, 295 N.Y. 436, 68 N.E.2d 431 (1946).
It has often been stated that a child under the age of four years is non sui juris as a matter of law. Yun Jeong Koo v. St. Bernard, 89 Misc. 2d 775, 392 N.Y.S.2d 815 (Sup. Ct., Queens Co. 1977), Beekman Estate, 44 Misc. 2d 11, 252 N.Y.S.2d 885; Verni, 295 N.Y. 436, 68 N.E.2d 431; Meyer v. Inguaggiato, 258 A.D. 331, 16 N.Y.S.2d 672, 673-74, appeal denied, 258 A.D. 1055, 17 N.Y.S.2d 1021 (N.Y. App. Div., 2d Dep't 1940); Mangam v. Brooklyn R. Co., 38 N.Y. 455, 460 (1868). Other courts have held that there is a mere presumption of incapacity for children under the age of four. Snell v. Motor Vehicle Accident Indemnification Corp., 34 A.D.2d 872, 310 N.Y.S.2d 828 (N.Y. App. Div., 3rd Dep't 1970), Chandler v. Keene, 5 A.D.2d 42, 168 N.Y.S.2d 788 (N.Y. App. Div., 3rd Dep't 1957).
Where an infant is older than four years of age, the status of that child as sui juris or non sui juris is to be determined by the trier of fact. See Woods v. United States, 197 F. Supp. 841, 844 (E.D.N.Y. 1961) (after trial, judge found 4 years and 10 month old child was non sui juris); Redmond v. City of New York, 81 A.D.2d 908, 909, 439 N.Y.S.2d 200, 201 (N.Y. App. Div., 2d Dep't), aff'd, 55 N.Y.2d 796, 432 N.E.2d 136, 447 N.Y.S.2d 434 (1981) (jury determined status of a 4 years and 10 month old child); Yun Jeong Koo, 89 Misc. 2d 775, 392 N.Y.S.2d 815 (jury to decide status of 4 years and 10 month old child); Searles v. Dardani, 75 Misc. 2d 279, 347 N.Y.S.2d 662 (Sup. Ct., Albany Co. 1973) (status of 4 and one half year old child may be passed upon by the trial justice); Chandler, 5 A.D.2d 42, 168 N.Y.S.2d 788 (status of a child of 4 years, 11 months and 10 days old put to the jury); Camardo, 247 N.Y. 111, 159 N.E. 879. Cf. Ehrlich v. Marra, 32 A.D.2d 638, 300 N.Y.S.2d 81 (N.Y. App. Div., 2d Dep't 1969) (finding, without discussion, that a child of 4 years and 10 months of age was non sui juris as a matter of law). Age alone, however, does not determine the ability of a child to care for himself, one must also consider a child's intelligence, experience and ability to apprehend the existence of danger, take precautions against it and exercise any degree of care for his own safety. See Woods, 197 F. Supp. at 844; Weidenfeld v. Surface Transport Corp., 269 A.D. 341, 55 N.Y.S.2d 780, 783 (N.Y. App. Div., 1st Dep't 1945) (4 year old child not automatically considered non sui juris); Camardo, 247 N.Y. at 116, 159 N.E. at 880 (no arbitrarily set age at which the duty to exercise some degree of care begins).
Due to the consideration of these additional factors, case law does not preclude the finding that a child over the age of four may never be non sui juris as a matter of law. See Ehrlich, 32 A.D.2d 638, 300 N.Y.S.2d 81. Specifically
a case might well arise . . . in which the court could properly hold as a matter of law that the injured child was non sui juris even though it was over the age of 4, on the ground that it was so lacking in intelligence and experience as to be incapable of appreciating the nature of the danger and of taking precautions to avoid injury to itself . . . .
Chandler, 5 A.D.2d at 44, 168 N.Y.S.2d at 791. Such a determination, would nevertheless require substantial evidence regarding the child's lack of intelligence and immaturity.
In the present case, at the time of the fire Tymic Moore was four years and four and one half months old.
Therefore, Tymic was above the age at which a court must conclude that he was non sui juris as a matter of law and the question is factual. Here, defendants have failed to proffer evidence demonstrating that there is no genuine issue of material fact that Tymic Moore was non sui juris at the time of the fire. Defendants merely state that Tymic was non sui juris at the time of the fire. Defendants have not offered evidence of Tymic's level of understanding, maturity or mental capacity at the time of the fire. Defendants have asserted that Tymic had a speech defect in April of 1992, but Tymic's understanding of the dangers of fire was demonstrated by the uncontroverted evidence that Tymic immediately alerted his grandmother to the fire's existence.
Since Tymic's mental ability and maturity at the time of the fire are at the core of this inquiry, defendants' plain conclusory statements cannot support their motion for summary judgment. See Sierra, 236 N.Y.S.2d 773 (issue of 5 year old's status precluded grant of summary judgment). Thus, Tymic's status is a determination of fact left to the purview of the ultimate trier of fact. Therefore, this issue cannot be decided on this motion for summary judgment.
For the reasons stated within this Memorandum and Order, defendants' motion for summary judgment on each of the grounds asserted by defendants is denied.
Dated: Brooklyn, New York
February 23, 1995
JOAN M. AZRACK
UNITED STATES MAGISTRATE JUDGE