| Struebel v Fladd |
| 2010 NY Slip Op 06058 [75 AD3d 1164] |
| July 9, 2010 |
| Appellate Division, Fourth Department |
| Janice Struebel, Individually and as Administrator of the Estate ofMatthew James Struebel, Deceased, Respondent, v Gloria Fladd et al.,Appellants. |
—[*1] Gross, Shuman, Brizdle & Gilfillan, P.C., Buffalo (David H. Elibol of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered April2, 2009 in a wrongful death action. The order, insofar as appealed from, denied in partdefendants' motion for summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting that part of the motion for summary judgment dismissing the complaint in its entiretyagainst defendant Gerald H. Welsted and dismissing the complaint in its entirety against thatdefendant, and by granting that part of the motion for summary judgment dismissing the firstcause of action against defendant Gloria Fladd except insofar as that cause of action allegesnegligent supervision and dismissing that cause of action to that extent against that defendantand as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action, individually and as administrator of theestate of her son (decedent), seeking damages for his wrongful death and conscious pain andsuffering. Decedent died as a result of a head injury he sustained after falling from a second storyporch of a house owned by defendant Gerald H. Welsted, where Welsted's fianc�e, defendantGloria Fladd, resided with her 16-year-old son. Fladd's son, decedent, and several otherteenagers were having a party at the house and beer was consumed. Fladd was at the house atvarious times during the evening in question but denied both that she supplied the alcohol andthat she was aware that alcohol was being consumed. The record establishes that Welsted wasnot present at the house at any time that evening. Defendants moved for summary judgmentdismissing the complaint, which asserts three causes of action. The first two are against Fladdand Welsted, respectively, for negligence including negligent supervision, and the third is aderivative cause of action against both defendants. Supreme Court granted the motion only to theextent that it was "based on the dram shop law." We conclude that the court should have grantedthat part of the motion for summary judgment dismissing the complaint in its entirety againstWelsted and that part of the motion for summary judgment dismissing the first cause of actionagainst Fladd except insofar as that cause of action alleges negligent supervision. We [*2]therefore modify the order accordingly.
With respect to the claim against Fladd for negligent supervision, we note at the outset that"the duty to control the conduct of third persons for the protection of others on the premisesextends not only to landowners, but also to those in control or possession of the premises"(Dynas v Nagowski, 307 AD2d 144, 147 [2003]). We conclude on the record before usthat there are issues of fact whether Fladd had the opportunity " 'to control the conduct of thirdpersons on [the] premises and [was] reasonably aware of the need for such control' " (id.at 146, quoting D'Amico v Christie, 71 NY2d 76, 85 [1987]), and thus may be held liablefor negligent supervision. We further note, however, that "[s]uch 'liability may be imposed onlyfor injuries that occurred . . . in an area under [Fladd's] control, where [she] had theopportunity to supervise the intoxicated guest' " (Place v Cooper, 35 AD3d 1260, 1261 [2006], quotingD'Amico, 71 NY2d at 85).
We turn next to those parts of defendants' motion seeking summary judgment dismissing thefirst and second causes of action to the extent that they allege that there was a dangerous ordefective condition on the premises, and to the extent that they allege an agency theory withrespect to Fladd's son as well as negligent supervision against Welsted. We conclude that thecourt erred in denying those parts of defendants' motion. With respect to the dangerous ordefective premises claim, "[d]efendants met their initial burden by establishing their entitlementto judgment as a matter of law on this claim . . . [and p]laintiff failed to raise anissue of fact whether the premises were kept in a reasonably safe condition" (Oehler vDiocese of Buffalo, 277 AD2d 967, 968 [2000]).
With respect to the agency theory, we note that " '[t]he existence of a parent-childrelationship is insufficient to establish an agency relationship; the proof must establish that thechild is in fact an agent of the parent' " (Dynas, 307 AD2d at 147; see Hannold vFirst Baptist Church, 254 AD2d 746, 747 [1998]). " 'Under most circumstances, [mere]intrafamilial activity will not give rise to an agency relationship' " (Dynas, 307 AD2d at148, quoting Maurillo v Park Slope U-Haul, 194 AD2d 142, 146 [1993]). Here, there isno evidence that Fladd's son was acting as an agent of either defendant.
Finally, we conclude that the court erred in denying that part of defendants' motion withrespect to the negligent supervision claim against Welsted. The record contains uncontrovertedevidence that he was not present at the premises on the night of the accident and that he wasunaware that friends of Fladd's son would be at the house or that alcohol would be consumed (see Ahlers v Wildermuth, 70 AD3d1154, 1155 [2010]). Based on our determination that there is no basis upon which to holdWelsted liable, the derivative cause of action must be dismissed against him as well, while thatcause of action remains viable with respect to Fladd, in view of her potential liability fornegligent supervision. Present—Smith, J.P., Lindley, Sconiers, Pine and Gorski, JJ.