The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Dawn Schessl, on behalf of her son Tyler Schessl ("Schessl"), brings this personal injury action against defendant Franklin Sports, Incorporated ("Franklin") claiming that her son was injured by a defective badminton racquet manufactured by Franklin. Specifically, she claims that while her son and other children were playing with the racquet during a party, the head of the racquet dislodged from the shaft, and struck Schessl in the forehead causing him severe and permanent injury. Plaintiff brings, inter alia, causes of action sounding in negligence, breach of warranty, and strict liability.
Defendant Franklin brings a third-party action against several individuals who were present at the party at the time Schessl was injured, claiming that those individuals are liable, in whole or in part, for Schessl's injuries, and therefore, the defendant is entitled to contribution and/or indemnification from those individuals.
Third-party defendant Jeff Banky ("Banky") now moves for summary judgment against third-party plaintiff Franklin on grounds that as a matter of law, he may not be held liable for Schessl's injuries. Specifically, Banky contends that the undisputed facts establish that he did not have any involvement with the children playing with the racquet, and owed no duty of care to Schessl or any of the other children at the party. He claims that because he did not supervise or observe the game, and because he was not involved in the game and owed no duty to any of the children playing the game, he cannot, as a matter of law, be liable for Schessl's injuries. Banky also moves for sanctions against Franklin because of Franklin's failure to consent to Banky's dismissal from the action.
Franklin opposes Banky's motion on grounds that there are several questions of fact as to whether or not voluntarily assumed a duty to Schessl, and if so, whether he failed to properly discharge that duty, and whether Schessl suffered an injury as a result of Banky's actions. Specifically, Franklin contends that Banky assumed a duty to Schessl when, prior to the accident he allegedly handed the broken head of the racquet to one of the children, and advised them to "try to be more careful."
For the reasons set forth below, I deny Banky's motion for summary judgment, and for sanctions.
According to the facts set forth in the plaintiffs' Complaint and the parties' moving papers, plaintiff Tyler Schessl, a minor child, along with his sister and parents, were guests at a party held at the home of third-party defendants Frank and Judi Coms in Perinton, New York. According to third-party defendant Banky, there were approximately 40 to 50 people in attendance at the party, including 17 to 24 children or teenagers.*fn1 During the course of the party, Schessl and another child played badminton using badminton racquets manufactured by defendant Franklin. Following the badminton game, several of the children began playing baseball in the front yard of the home with one of the badminton racquets, (being used as a bat) and a tennis ball. The game was not organized, supervised, or officiated by any of the adults at the party.
During the baseball game, one of the children swung the racquet, causing the racquet head to fly off the handle and land on the roof of the home. The racquet head then slid to the ground and landed near the front porch of the home. According to one of the children playing the game, an adult male retrieved the racquet head and handed it back to one of the children, and told the child to "try to be more careful." Banky denies that he retrieved the racquet head, handed it to anyone, or told anyone to be more careful using it. Plaintiffs allege that Banky was the only adult male in the area at the time.
After one of the children attempted to reattach the racquet head to the racquet, the game resumed. However, upon swinging the racquet again, the head again became dislodged, and this time, the racquet head struck Schessl in the head, causing him injury.
I. The Third-Party Defendant's Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." When considering a motion for summary judgment, all genuinely disputed facts must be resolved in favor of the party against whom summary judgment is sought. Scott v. Harris, 550 U.S. 372, 380 (2007). If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of ...