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United States District Court, S.D. New York

March 9, 2004.

COLBY RAE SANTORO, a minor by her Guardian Ad Litem, her Mother, Diana Santoro, -against- LEWIS DONNELLY, FAIRVIEW MAJESTIC FIREPLACE, CORP., and THE VERMONT CASTING MAJESTIC PRODUCTS CO., Defendants

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Colby Rae Santoro brings this diversity action against her father Lewis Donnelly, Fairview Majestic Fireplace Corp. ("Fairview"), and The Vermont Casting Majestic Products Co. ("Vermont Casting"). She alleges causes of action for negligence and product liability arising from the December 2001 accident in which she sustained injuries resulting form touching the glass surface of a fireplace in Donnelly's home.*fn1 Donnelly now moves for summary judgment Page 2 pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, Donnelly's motion is granted in part and denied in part.


  A. The Parties

  Colby Rae Santoro is a three-year-old child bringing this action by and through her natural mother and Guardian ad Litem, Diana Santoro.*fn2 Colby is a New Jersey resident.*fn3 Lewis Donnelly, a New York citizen, is Colby's natural father.*fn4 He owns a construction company called Ashmar Development, which builds single-family homes. Fairview is a corporation organized under the laws of New York, which distributes and installs gas fireplaces.*fn5 Vermont Castings is a Page 3 manufacturer of gas fireplaces conducting business in New York.*fn6

  B. Procedural History

  In her original complaint, Colby named only Donnelly as a defendant. On December 26, 2002, Donnelly filed a third-party complaint against Fairview and Vermont Castings.*fn7 Colby then amended her complaint in April 2003, naming Donnelly, Fairview, and Vermont Castings as defendants.*fn8 Following a pre-motion conference before this Court on October 14, 2003, Donnelly brought the instant motion, seeking summary judgment.

  C. Facts

  1. The Accident

  On December 22, 2001, Colby, then one year old, sustained burns on her hands, forearm, and forehead after touching the glass cover of a gas fireplace in the living room of her father's New York residence.*fn9 The incident occurred Page 4 during Colby's first visit to Donnelly's new house.*fn10 On the day of the accident, Donnelly was supervising Colby, as well as two eleven-year-old girls — his daughter Ashley Donnelly and her friend Brooke Sackaris.*fn11 As he was unpacking groceries in the kitchen, Ashley asked him for permission to turn on the gas fireplace in the living room.*fn12 Donnelly consented and told her where the switch was located (next to the fireplace) and how to light the fireplace (by flipping the switch).*fn13 Within approximately ten minutes, Donnelly, who was still in the kitchen unpacking groceries, became aware of the fact that Colby had stumbled Page 5 into the heated glass surface of the fireplace.*fn14

  2. The Fireplace

  Two Vermont Castings gas fireplaces were placed in Donnelly's home at approximately the same time — one in his living room and one in his bedroom.*fn15 Donnelly alleges that when the fireplaces were installed, Fairview, the distributor/installer, neither provided him with operating instructions nor verbally instructed him as to how the fireplaces should be operated.*fn16 Prior to the accident, Donnelly had briefly tested, but never used, the fireplaces and was unaware that the glass surface could reach temperatures of up to 435 degrees Fahrenheit.*fn17

  Although Donnelly may never have received it, Vermont Castings has a manual that contains installation and homeowner instructions directing the proper use of its fireplaces. This manual contains a warning that specifically states: "Children and adults should be alerted to the hazards of the high surface Page 6 temperatures of this fireplace and should stay away to avoid burns or ignition of clothing. Caution, due to high glass surface temperature children should be carefully supervised when they are in the same room as the fireplace."*fn18


  A. Summary Judgment Standard

  Summary judgment is permissible "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn19 "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'"*fn20 A fact is material when "it `might affect the outcome of the suit under the governing law.'"*fn21

  The party seeking summary judgment has the burden of Page 7 demonstrating that no genuine issue of material fact exists.*fn22 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it `"must do more than simply show that there is some metaphysical doubt as to the material facts,'"*fn23 and it "`may not rely on conclusory allegations or unsubstantiated speculation.'"*fn24 Rather, the non-moving party must produce admissible evidence that supports its pleadings.*fn25 In this regard, "[t]he `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment."*fn26

  In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving Page 8 party and draw all inferences in that party's favor.*fn27 Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."*fn28 Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party."*fn29

  B. Negligence

  Although there is no intrafamily immunity for nonwillful torts under New York law,*fn30 "a parent's negligent failure to supervise a child is generally held not to constitute a tort actionable by the child."*fn31 The foundation for the "negligent supervision" exception is concern for the "inevitable `strain on the family relationship'" — the notion that `"[t]he mutual obligations of the parent-child Page 9 relation derive their strength and vitality from such forces as natural instinct, love and morality, and not from the essentially negative compulsions of the law's directives and sanctions.'"*fn32 Thus, recovery by infant plaintiffs from their parents has been disallowed where the basis for liability was the parent's failure to prevent his/her child from falling from a slide on the playground, being struck by a lawnmower operated by another child,*fn33 sustaining burns from scalding bath water*fn34 or boiling fat left unattended in a deep fryer,*fn35 or falling from a window left open by the parent.*fn36

  The Court of Appeals has also recognized a "very specific and narrow Page 10 complement" to the principle of negligent supervision, imposing liability on parents who have entrusted their infant child with a dangerous instrument.*fn37 In other words, "parents owe a duty to protect third parties from harm that is clearly foreseeable from the child's improvident use or operation of a dangerous instrument, where such use is found to be subject to the parent's control."*fn38 Whether a particular instrument is dangerous depends on the "`nature, complexity, and size of the instrument as well as the age and proficiency of the infant [using] it.' Such a determination may, where the record is sufficiently developed, be made as a matter of law."*fn39 Moreover "items that are commonly used by children, of Page 11 suitable age in a manner consistent with their intended use, may not, as a matter of law, be classified as dangerous instruments."*fn40

  Notably, neither the principle of negligent supervision, nor the dangerous instrument exception, precludes recovery by a child from a parent under a theory of ordinary negligence.*fn41 Where "a parent `breaches a duty owed to the world at large,'" i.e., a duty that exists apart from a family relationship, that parent's negligence gives rise to a viable cause of action in favor of the infant, against the parent.*fn42 Accordingly, a court must evaluate the nature of the duty owed by the parent in determining whether a parent's actions constitute "negligent supervision" or ordinary negligence.*fn43 Page 12


  A. Negligent Entrustment of a Dangerous Instrument

  Donnelly argues that he is not liable under a theory of negligent entrustment because he did not "entrust" a dangerous instrument to Ashley and she was not improvident in her use of the allegedly dangerous instrument — the gas fireplace.*fn44 Colby counters that "the determination of whether the fireplace . . . was `entrusted' to anyone in the room, whether it is a dangerous instrument and whether or not Mr. Donnelly was aware of and capable of controlling the instruments [sic] use are inherently factual in nature and are questions for the trier Page 13 of fact."*fn45 But such determinations are routinely made as a matter of law, where the record is sufficiently developed.*fn46 The record in this case fails to support Colby's theory that Donnelly "entrusted" the fireplace to Ashley. He authorized her to flip a switch, which is easily distinguishable from allowing a child access to a car or a motorcycle,*fn47 To permit plaintiff to recover on a theory of negligent entrustment where defendant parent merely permitted his child to flip a switch would distort a traditionally narrow exception to the negligent supervision principle. Such an extension is not warranted either by existing case law or the facts of this case. Accordingly, summary judgment is granted as to Colby's claim of negligent entrustment of a dangerous instrument.

  B. Negligence

  Donnelly argues that he did not breach a duty of care owed to "the world at large" by permitting his daughter Ashley to ignite the fireplace.*fn48 Rather, Page 14 he contends that his role in the events leading to Colby's injuries "can be nothing more than negligent supervision."*fn49 But the duty of care that Donnelly violated was owed regardless of his relationship to Colby. As the homeowner's manual warns, when used improperly, the gas fireplace poses risks of injury due to its emission of dangerously high heat.*fn50 Accordingly, Donnelly's obligation to exercise reasonable care in the maintenance and operation of this dangerous fixture was a duty owed to all.

  The finding that Donnelly's duty exists apart from his parental relationship with Colby is supported by New York precedents permitting actions by children against their parents where plaintiffs' injuries resulted from: (1) the mother's decision to leave a running electric lawnmower unattended in the family yard and (2) the parents' failure to restrict accessibility to their swimming pool.*fn51 Moreover, the facts of this case clearly distinguish it from New York cases barring recovery by a child against a parent where the parents' negligent acts could only Page 15 constitute negligent supervision. Those cases typically involve situations where, for instance, the parent fails to watch her child and the child falls from a slide, gets hit by a car, or slips into a bath of scalding water.*fn52 But here, the negligent act was not merely Donnelly's failure to prevent Colby from stumbling into the glass surface of the fireplace — it was his alleged failure to exercise due care in operating and maintaining the fireplace. Thus, the record suggests that Donnelly may have been negligent in his supervision of Colby and may also have breached a duty of care owed to the world by negligently operating and maintaining the gas fireplace. Donnelly further submits that because he did not turn on the fireplace himself, he cannot be liable for Colby's injuries as a matter of law. This argument lacks merit for at least two reasons. First, Donnelly specifically authorized Ashley to flip the switch, turning on the gas fireplace. Second, his alleged negligence arises from his failure to limit access to the fireplace, as well as his failure to exercise due care in its operation. Thus, a factfinder could conclude that a reasonable person would have known that a gas fireplace with an exposed glass surface would pose the threat of injury and would have erected a guard or barrier barring open access to the fireplace. A factfinder could also determine that Page 16 Donnelly did exercise due care in his maintenance and use of the fireplace. But it cannot be stated as a matter of law at this stage in the proceedings that Donnelly was not negligent in his maintenance and operation of the gas fireplace. Moreover, a question of fact exists as to whether negligent supervision or the breach of a duty to exercise reasonable care in the operation of the gas fireplace was the proximate cause of Colby's injuries.*fn53 IV. CONCLUSION

  For the reasons set forth above, Donnelly's motion for summary Page 17 judgment is granted in part and denied in part. Donnelly's motion is granted with respect to Colby's claim of negligent entrustment of a dangerous instrument and denied as to Colby's allegations that Donnelly failed to exercise due care in his operation and maintenance of the gas fireplace. The Clerk of the Court is directed to close this motion [number 29 on the docket sheet].


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