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Deperno v. Hans

Other Lower Courts

November 20, 2007

Patricia DePerno and Charles DePerno, Plaintiff,
v.
Peter Hans, Sr., Peter D. Hans, Jr. and Ryan Hans, Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

HICKEY, SHEEHAN & GATES, P.C. By: Gregory A. Gates, Esq. Attorneys for Plaintiff.

LAW OFFICE OF LAURIE G. OGDEN, By: Matthew J. Roe, Esq. Attorneys for Defendant, Peter D. Hans, Jr. and Ryan Hans.

GOZIGIAN, WASHBURN and CLINTON By: Edward Gozigian, Esq. Attorneys for Defendant, Peter Hans, Sr.

OPINION

Phillip R. Rumsey, J.

This case arises out of an unfortunate accident in which a golf cart, driven by defendant Ryan Hans - then 8 years old - collided with his aunt, Patricia DePerno (hereinafter plaintiff; her husband sues derivatively), who was washing her car. Plaintiffs, together with Ryan and his father (defendant Peter Hans, Jr.) and mother, were attending a weekend-long family reunion at the premises of defendant Peter Hans, Sr. (Ryan's grandfather). On the day of the incident, some individuals were involved in a paintball game on an adjacent parcel of land, and Ryan had been using the golf cart, which was owned by his grandfather, to ferry supplies out to the area where the paintball activity was occurring.

Ryan was not deposed, and claims to remember nothing of the accident. Shortly after the occurrence, however, he is reported to have told his father that he had been following a cousin who had suggested that they "go for a ride" and taken another cart (Deposition of Peter Hans, Jr., dated October 12, 2006, p. 7), and that he "couldn't turn [the cart] quick enough" to avoid the collision (id., p. 8). Ryan's mother also witnessed the accident; she was sitting about 10-15 feet from plaintiff when she saw Ryan "jump[] in the golf cart and [take] off," colliding with plaintiff, who was between the front of the cart and the side of her own vehicle (Deposition of Brenda Hans, dated January 30, 2007, pp. 7-9).

Plaintiffs commenced this action, charging the adult defendants (Ryan's father and grandfather) with, inter alia, negligently entrusting a dangerous instrument - the golf cart - to a minor. Issue has been joined and discovery completed. Peter Hans, Jr. and Peter Hans, Sr. now move for summary judgment, and plaintiff cross-moves for summary judgment on the issue of Ryan's negligence.

The adult defendants, both charged with negligent entrustment, [1] argue that as a matter of law, given the prevailing circumstances, the golf cart cannot be considered a "dangerous instrument". Whether an item may be so classified depends on several factors, including the nature and complexity of the instrument itself, the particular attributes (e.g., age, maturity, intelligence, and physical characteristics) of the minor to whom it has been entrusted, and his or her experience and proficiency with the instrument (Rios v Smith, 95 N.Y.2d 647, 653 [2001]; Botillo v Poette, 152 A.D.2d 840, 841 [1989]). While it is relevant, in this regard, that Ryan and other children were regularly permitted to use the golf carts, had done so on many occasions without incident, and were believed by their relatives to be sufficiently "responsible" to operate the carts, those facts are not necessarily dispositive (see, Kelly v DiCerbo, 27 A.D.3d 1082, 1083 [2006]); other factors, such as the nature of the golf cart and its potential for causing injury, and Ryan's young age and small size (as evidenced by testimony that he was able to reach the pedals of the cart only by sitting on the edge of the seat [Deposition of Patricia DePerno, dated October 12, 2006, p. 61]), must also be considered.

While courts have sometimes held, as a matter of law, that an item was not a "dangerous instrument," those cases involved things intended to be used by children (e.g., a bicycle, a see-saw, a skateboard [ see, Sorto v Flores, 241 A.D.2d 446 (1997); Pietrzak v McGrath, 85 A.D.2d 720 (1981); Young v Dalidowicz, 92 A.D.2d 242 (1983), app dismissed 59 N.Y.2d 967]) or, in a few instances, ordinary household items (e.g., a coffee urn, a hot pizza [see, Simcha v Simcha, 292 A.D.2d 591 (2002); Keohan v DiPaola, 97 A.D.2d 596, 597 (1983)]). A full-sized golf cart - a motorized vehicle, capable of attaining sufficient speed to cause substantial damage to people and property in its path, and designed to be operated by an adult - has more in common with an All-Terrain Vehicle (ATV), boat, or motorized bicycle, all of which have been found to be potentially dangerous in the hands of minors (see, Rios; Kelly;cf., LaLomia v Bankers & Shippers Ins. Co., 35 A.D.2d 114 [1970], affd 31 N.Y.2d 830), than with a hot pizza or a bicycle.

Consequently, this court cannot conclude, as a matter of law, that a golf cart is not a "dangerous instrument" when placed into the hands of an 8-year-old child, for operation on a family estate where there are numerous adults and children engaged in various activities. Inasmuch as both Peter Hans, Sr. and Peter Hans, Jr. were on the premises, and either could have prevented Ryan from driving the cart (Peter Hans, Sr. by virtue of his control over the cart, which he owned, and Peter Hans, Jr. because of his parental relationship and concomitant control over his son's activities), their respective motions for dismissal of plaintiff's causes of action for negligent entrustment must be denied.

Turning to the claims against Peter Hans, Sr. for negligent supervision and premises liability, the mere fact that Ryan's parents were present does not necessarily preclude a finding of negligence on the part of the property owner, as a contributing cause of plaintiff's injuries. As property owner, Peter Hans, Sr. had a duty to control the activities occurring on his premises - including the activities of his grandson - if he had the opportunity to do so, and could reasonably foresee the need for such control (see, Mangione v Dimino, 39 A.D.2d 128, 129 [1972]). He clearly had the ability to control Ryan's use of the golf carts, and the ...


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