| Ahlers v Wildermuth |
| 2010 NY Slip Op 01039 [70 AD3d 1154] |
| February 11, 2010 |
| Appellate Division, Third Department |
| Angela Ahlers, Appellant, et al., Plaintiff, v JoshuaWildermuth et al., Defendants, and Tara Clements et al.,Respondents. |
—[*1] Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (James E. Lonano ofcounsel), for respondents.
Garry, J. Appeal from an order of the Supreme Court (Donohue, J.), entered January 30,2009 in Columbia County, which granted a motion by defendants Tara Clement and HaroldClement for summary judgment dismissing the complaint against them.
During the early morning hours of January 1, 2005, local police, responding to a neighbor'scomplaint, arrived at a residence owned by defendant Harold Clement in the Town of Copake,Columbia County to break up a loud party.[FN1]Upon discovering several intoxicated and apparently unconscious individuals inside theresidence, the police requested that emergency [*2]medicalservices be dispatched to the scene. Plaintiff Angela Ahlers, a paramedic with the local rescuesquad, arrived and found defendant Joshua Wildermuth lying face down in his own vomit.Wildermuth regained consciousness after Ahlers cleared his airway and administered oxygen. Ashe became more alert, he also became combative, grabbing and twisting Ahlers' arm andrepeatedly striking her in the head.
Ahlers and her then-fiancÉ, derivatively, thereafter commenced this action against,among others, Harold Clement and his then 18-year-old daughter, defendant Tara Clement(hereinafter collectively referred to as defendants), the purported host of the underlying party,alleging various injuries and asserting, insofar as is relevant to this appeal, a common-lawnegligence claim. Following joinder of issue, defendants moved for summary judgmentdismissing the complaint against them. Supreme Court granted defendants' motion and Ahlersappeals.[FN2]
We affirm. It is well settled that "landowners have a duty to control third persons only 'whenthey have the opportunity to control such persons and are reasonably aware of the need for suchcontrol' " (Crowningshield vProctor, 31 AD3d 1001, 1002 [2006], quoting D'Amico v Christie, 71 NY2d 76,85 [1987]; see Dynas v Nagowski, 307 AD2d 144, 146 [2003]; Demarest vBailey, 246 AD2d 772, 773 [1998]). Thus, our inquiry distills to whether defendants shouldhave been aware of the risk of harm to Ahlers or the threat of harm posed by Wildermuth."Without the requisite awareness, there is no duty" (Crowningshield v Proctor, 31 AD3dat 1002; see Guercia v Carter, 274 AD2d 553, 554 [2000]).
Here, Harold Clement averred that he was out of town at the time the underlying incidentoccurred, he did not give his daughter permission to have a party or to invite anyone to the houseother than three specified female friends he had authorized to attend a sleepover, there was noalcohol present in his house when he and his spouse left, his daughter did not have any history ofdrug or alcohol abuse and he was unaware of the incident until notified by the police. Similarly,Tara Clement averred that there was no alcohol in the house when her parents left, neither shenor her three invited friends purchased or otherwise brought alcohol into the house that night,her repeated attempts to persuade the numerous uninvited guests, some of whom brought alcoholwith them, to leave her parents' house were unsuccessful, she did not invite Wildermuth to thehouse that night, she did not witness him drinking and, when she did see him, he did not appearto be intoxicated. Tara Clement further averred that she was not present when Wildermuth struckAhlers, as the police had instructed her to remain in another room while the paramedics worked.Such proof, in our view, is sufficient to discharge defendants' initial burden on their motion forsummary judgment dismissing the complaint against them (see Guercia v Carter, 274AD2d at 554; Demarest v Bailey, 246 AD2d at 773; see also Barry v Gorecki, 38 AD3d 1213, 1215 [2007]).
In opposition, plaintiffs tendered affidavits from Ahlers, Raymond Kennedy, a privateinvestigator hired by plaintiffs, and plaintiffs' counsel, the latter of which Supreme Courtproperly disregarded as lacking in evidentiary value (see Daus v Cassavaugh, 17 AD3d 837, 839[*3][2005]), in addition to other supporting documentation. We agreewith Supreme Court that this proof was insufficient to raise a question of fact as to defendants'alleged negligence. At best, Kennedy's affidavit suggests that Wildermuth had "prior contactwith the criminal justice system"—the apparent implication being that he was atroublemaker, which falls far short of establishing that Wildermuth had a reputation for violenceand that Tara Clement was aware of it. Similarly, even accepting that Harold Clement'sexpressed regret for the underlying incident constitutes an admission, parental remorse does notcreate a duty where one does not otherwise exist. While the record reveals that a number ofindividuals, including Wildermuth, arrived at the Clement residence and consumedalcohol—some to the point of requiring medical assistance—neither that fact alonenor the quantity of alcohol and drugs ultimately discovered at the house provides a sufficientbasis upon which to impose liability, particularly absent any suggestion that Harold Clementgranted his daughter permission to host an unsupervised party (compare Fantuzzo vAttridge, 291 AD2d 871, 872 [2002]) or was present when the underage drinking occurred(compare Lane v Barker, 241 AD2d 739, 740 [1997]).
Nor is plaintiffs' proof sufficient to raise a question of fact as to whether Tara Clementinvited anyone, including Wildermuth, to a party or was on notice that Wildermuth was eitherintoxicated or posed any particular threat to those around him, or that his actions otherwiseneeded to be controlled (see O'Neill vIthaca Coll., 56 AD3d 869, 871-872 [2008]; compare Fantuzzo v Attridge, 291AD2d at 872; Kern v Ray, 283 AD2d 402 [2001]). We reach a similar conclusion withregard to the assertion that Tara Clement was acting as her father's agent on the night in question(see Dynas v Nagowski, 307 AD2d at 147-148). Accordingly, Supreme Court's order isaffirmed.
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: Although the caption has notbeen amended, Harold Clement's last name and that of his daughter, defendant Tara Clement, ismisspelled.
Footnote 2: Plaintiffs did not opposedismissal of the seventh and ninth causes of action sounding in negligent supervision and loss ofconsortium, leaving only Ahlers' common-law negligence claim against defendants for SupremeCourt's consideration.