Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 13, 2012 Tom, J.P., Mazzarelli, Saxe, Catterson, DeGrasse, JJ.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 4, 2011, which granted defendants' motion for summary judgment dismissing the complaint, affirmed, without costs.
Contrary to plaintiff's contention, there is no evidence in the record to support her theory that either of defendants was pulling the suitcase that plaintiff tripped over. Although defendants assert that the child was in control of the suitcase, plaintiff insists that the child was not. Accordingly, she could not prove a claim for negligent supervision, as such a cause of action is dependent on an allegation that a child improvidently used or operated a dangerous instrument (see Rios v Smith, 95 NY2d 647, 652-653 ). In light of this, the dissent's argument concerning whether the suitcase was a dangerous instrument is wholly academic.
We have considered plaintiff's remaining contentions and find them unavailing. All concur except Tom, J.P. and Saxe, J. who dissent in a memorandum by Saxe, J. as follows: SAXE, J. (dissenting)
I agree with the majority that plaintiff has not presented any evidence from which it could be found that one of the defendant parents, rather than their two year old, was handling the suitcase that caused plaintiff's fall. However, I disagree with the dismissal of the claim of negligence against the parents. In particular, I disagree with the motion court's implicit conclusion that entrusting a two year old with a medium-sized wheeled suitcase on a Manhattan sidewalk does not, as a matter of law, create a dangerous instrumentality. Although plaintiff challenged the order on appeal with the contention that it was not alleging negligent supervision, and that an issue of fact was presented as to who was actually handling the suitcase, I would deny dismissal, finding an issue of fact as to whether defendant parents breached their duty to third parties by creating an unreasonable risk of harm to others when they placed a wheeled suitcase under the control of their two year old on a public sidewalk.
Plaintiff alleges that at around noon on Saturday, October 3, 2009, she was walking on the sidewalk of York Avenue between 78th Street and 79th Street in Manhattan when she was struck from behind, and caused to fall, by what turned out to be a wheeled suitcase that hit her in the back of her leg. Plaintiff did not see the suitcase until after she fell, and she did not know who had been handling it. According to defendants' deposition testimony, their two year old child had been pulling the suitcase at the time of the incident, although neither parent saw how it occurred. The child's father, David Austin, had been walking in front of the child, holding her right hand with his left hand, while she pulled the suitcase behind her, with its handle fully extended. The child's mother was behind them, but by the time she turned the corner onto York Avenue from 78th Street, plaintiff was already falling, and the suitcase was on the ground, no longer held by anyone.
Defendants' summary judgment motion was based on the assertion that it was their child who was pulling the suitcase, and that the child herself, being two years old, could not be found negligent (see Verni v Johnson, 295 NY 436, 438 ), while a parent cannot be held liable for lack of supervision of a child unless the accident was clearly foreseeable from the child's improvident use or operation of a dangerous instrument that was subject to the parent's control (see Rios v Smith, 95 NY2d 647, 652-653 ). They asserted that a suitcase cannot be a dangerous instrument.
Plaintiff countered that there was a question of fact as to who was pulling (or pushing) the suitcase at the time she was struck, but that it would have been impossible for a child the size of defendants' daughter -- who was no taller than the suitcase itself, and weighed less than 30 pounds -- to handle it. The majority holds that there is no viable claim against defendants, as there is no evidence supporting plaintiff's theory that one of the defendants handled the suitcase. I disagree with that broad holding, and submit that the evidence showing that defendants' child was handling the suitcase at the time of the accident may warrant holding the parents liable if they entrusted their child with an object that, under those particular circumstances, created an unreasonable risk of harm to others.
In Nolechek v Gesuale (46 NY2d 332 ) and Rios v Smith (95 NY2d 647 ), the Court of Appeals upheld negligence claims against parents who provided their minor children with motorized vehicles when they were aware that others would be endangered by their use. The defendant father in Nolechek had given a motorcycle to his 16-year-old son who was blind in one eye and had impaired vision in the other (46 NY2d at 337), and in doing so may have breached his "duty to protect third parties from the foreseeable harm that results from the children's improvident use of dangerous instruments, to the extent that such use is subject to parental control" (id. at 340). In Rios, the 17-year-old plaintiff was injured when riding as a passenger on an ATV supplied to the 16-year-old driver by his friend, the defendant's son (95 NY2d at 650). The Court held that the evidence was sufficient to support a fact issue as to whether the father had "created an unreasonable risk of harm to plaintiff by negligently entrusting the ATVs to his son" (id. at 653).
While those cases concerned instrumentalities that are generally agreed to be dangerous, the law does not limit the possibility of parental liability to instrumentalities which by their nature alone are dangerous.
Importantly, the PJI does not frame the issue of negligent entrustment of an instrumentality to a child in terms of "dangerous instruments." Rather, PJI 2:260 states, "A parent is not responsible for the acts of (his, her) child, but is responsible for the failure to use reasonable care in entrusting to or leaving in the possession of the child an instrument which, in view of the nature of the instrument, the age, intelligence, and disposition of the child and (his, her) prior experience with such an instrument, constitutes an unreasonable risk of harm to others" (emphasis added). The Comment to this instruction further explains that it is not the instrument alone that establishes the danger: "The tort consists of entrusting or permitting the use of an instrument made dangerous by the age, intelligence, infirmity, disposition or training of the user which causes injury to a third party" (1B NY PJI3d 2:260 at 723  [emphasis added]). As the Rios Court explained, "[w]hether a particular object qualifies as a dangerous instrument depends on the nature of the instrument and the facts pertaining to its use, including the particular attributes of the minor using or operating the item" (95 NY2d at 653, citing 45 NY Jur 2d, Domestic Relations § 534, Craft v Mid Is. Dept. Stores, 112 AD2d 969, 970 [2d Dept 1985], and Alessi v Alessi, 103 AD2d 1023, 1024 [4th Dept 1984]).
There is no question that "items that are commonly used by children, of suitable age in a manner consistent with their intended use, may not, as a matter of law, be classified as dangerous instruments" (Rios, 95 NY & 2d at 653, citing Sorto v Flores, 241 AD2d 446, 447 [2d Dept 1997], Barocas v F.W. Woolworth Co., 207 AD2d 145, 148 [1st Dept 1995], and Santalucia v County of Broome, 205 AD2d 969, 970-971 [3d Dept 1994], lv dismissed 84 NY2d 923 ). However, the cases in ...