| Aquino v Higgins |
| 2009 NY Slip Op 09744 [68 AD3d 1650] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| Michael Aquino, Respondent-Appellant, v Michael Higgins,Defendant, and John Higgins et al., Appellants-Respondents. |
—[*1] Brown Chiari LLP, Lancaster (Samuel J. Capizzi of counsel), forplaintiff-respondent-appellant.
Appeal and cross appeal from an order and judgment (one paper) of the Supreme Court, ErieCounty (Christopher J. Burns, J.), entered February 20, 2009. The order and judgment granted inpart and denied in part the motion of defendants John Higgins and Heather Higgins for summaryjudgment.
It is hereby ordered that the order and judgment so appealed from is modified on the law bygranting in its entirety the motion of defendants John Higgins and Heather Higgins anddismissing the complaint against them and as modified the order and judgment is affirmedwithout costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhile he was a passenger in a vehicle that was driven by then 19-year-old defendant MichaelHiggins and was owned by his parents (hereafter, defendant parents). We conclude that SupremeCourt erred in denying that part of the motion of defendant parents seeking summary judgmentdismissing the fourth cause of action, and we therefore modify the order and judgment bygranting in its entirety their motion for summary judgment and dismissing the complaint againstthem. Plaintiff alleged in the fourth cause of action that defendant parents were negligentbecause they failed to ensure that plaintiff, who was a minor at the time of the accident, had asafe means of returning home from the party hosted by them, in light of their knowledge thatalcohol had been consumed by guests at the party.
The record establishes that defendant parents permitted their daughter to host a party at theirresidence following a high school dinner dance and that defendant father expressly told hisdaughter that defendant parents would not permit any alcohol to be served. The record furtherestablishes that defendant parents provided food, soda and water for the daughter's guests.Although defendant parents observed the guests arrive, they did not observe anyone take alcoholinto the basement where the party was held. Defendant parents were not aware that there wasalcohol present at the party until defendant mother entered the basement at the end of the partyand observed approximately 12 beer cans. Defendant father suspected that his son, defendant[*2]Michael Higgins, had been drinking, and he escorted his sonto the son's bedroom and instructed the son to go to bed. Meanwhile, defendant mother asked theguests whether anyone needed a ride home, but no one accepted the offer. Defendant parents hadeach observed the guests after discovering the alcohol, and they each testified at their depositionsthat none of the guests appeared to be intoxicated. Plaintiff, however, presented the depositiontestimony of other guests who testified that plaintiff appeared to be intoxicated. Defendantparents were unaware that their son had left the house to drive plaintiff and another person homeuntil they were notified of the accident that is the subject of this action.
In denying that part of the motion seeking summary judgment dismissing the fourth cause ofaction, the court determined that there is an issue of fact whether defendant parents providedadequate supervision for the guests at their daughter's party. Plaintiff contended in opposition tothat part of the motion that defendant parents were negligent in failing to ensure that the guestshad adequate transportation home.
In order to establish a prima facie case of negligence against defendant parents, plaintiffmust demonstrate that they owed a duty to him; that the duty was breached; and that he wasinjured as a result of that breach of duty (see Mary A. ZZ. v Blasen, 284 AD2d 773, 774[2001]). We conclude that defendant parents met their initial burden of establishing that theywere not negligent and that plaintiff failed to raise an issue of fact (see generally Zuckermanv City of New York, 49 NY2d 557, 562 [1980]). Although it is of course well establishedthat a landowner may be liable for injuries caused by an intoxicated guest on the landowner'sproperty, or in an area under the landowner's control (see D'Amico v Christie, 71 NY2d76, 85 [1987]), here, plaintiff was injured in a vehicle driven by defendant son on a public road,5 to 10 minutes from defendant parents' home (see Lombart v Chambery, 19 AD3d 1110, 1111 [2005]). InLombart, the defendant grandmother permitted alcohol to be served to individuals underthe legal drinking age, including the plaintiff, and we concluded that the claim against thedefendant grandmother was properly dismissed inasmuch as the plaintiff was injured in anaccident "miles away" from defendant's property (id.).
In a case involving a minor plaintiff, the Second Department determined that the defendantswere not liable for injuries sustained by the plaintiff, who was struck by a vehicle after leaving aparty at the defendants' home (Rudden vBernstein, 61 AD3d 736 [2009]). The party was attended by 13- and 14-year-oldchildren who had consumed alcohol during the party on property that was near the defendants'property (id. at 738). The defendant parents in that case became aware that children wereintoxicated before the children left the party. The Second Department noted, however, that thedefendant parents did not serve alcohol and that the defendant mother observed the plaintiff andother children walk toward a vehicle parked on the roadway, when in fact the plaintiff andanother child walked home, at which time the plaintiff was struck by a vehicle.
Although a person other than a parent has a duty to use reasonable care to protect an infantover whom that person has assumed temporary custody or control (see Appell v Mandel,296 AD2d 514 [2002]), such a person is not an insurer of the safety of that infant (see Moreno v Weiner, 39 AD3d830, 831 [2007], lv denied 9 NY3d 807 [2007]). Here, defendant parents reasonablybelieved that alcohol would not be served at the party (cf. Lombart, 19 AD3d at1110-1111) and, upon discovering that alcohol had been served, observed the guests andbelieved that none of them was intoxicated (cf. Rudden, 61 AD3d at 737). Furthermore,defendant mother ascertained that none of the guests needed a ride home. Thus, we conclude thatdefendant parents satisfied their duty to provide adequate supervision for the guests at the partywhile the guests were under their control (see generally id. at 738; Moreno, 39AD3d at 831). That duty does not extend to an area not within the control of defendant parents(see Rudden, 61 AD3d at 738; Lombart, 19 AD3d at [*3]1111).
All concur except Green and Gorski, JJ., who dissent in part and vote to affirm in thefollowing memorandum.
Green and Gorski, JJ. (dissenting in part). We respectfully dissent in part. Although we donot agree with the reasoning of Supreme Court in denying that part of the motion of defendantparents seeking summary judgment dismissing the fourth cause of action, we nevertheless agreewith plaintiff that the court properly denied that part of the motion. In our view, there is an issueof fact with respect to the alleged negligence of defendant parents, i.e., whether they adequatelyensured that plaintiff, who was a minor at the time of the accident, had a safe means of returninghome from the party hosted by them, in light of their knowledge that alcohol had been consumedby guests at the party (cf. Rudden vBernstein, 61 AD3d 736, 738 [2009]; see generally Moreno v Weiner, 39 AD3d 830 [2007]). InRudden, a case cited by the majority, the Second Department concluded that thedefendant parents were not liable for the injuries sustained by a minor who attended a party attheir home because, inter alia, the alcohol was not consumed on their premises and the accidentoccurred after the intoxicated minor "left their property, apparently in the company of hisfriends and a responsible adult who was driving them home" (id. at 738 [emphasisadded]). Here, there is evidence in the record that a significant amount of alcohol had beenbrought to the party by 10 or more different guests, that the alcohol was consumed on thepremises, that defendant parents became aware of the alcohol prior to plaintiff's departure fromthe party, and that plaintiff was visibly intoxicated when he left the premises after 1:00 a.m.Unlike in Rudden, however, defendant parents in this case did not observe plaintiff leavein the company of a responsible adult. Thus, contrary to the conclusion of the majority, webelieve that under the facts of this case defendant parents had a duty of care to ensure thatplaintiff had a safe means of transportation from their premises. We therefore would affirm.Present—Scudder, P.J., Hurlbutt, Green, Pine and Gorski, JJ.