| Kolodziejczak v Kolodziejczak |
| 2011 NY Slip Op 02549 [83 AD3d 1377] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| Christine Kolodziejczak, Individually and as Parent and LegalGuardian of Claire Kolodziejczak, an Infant, Respondent, v Raymond Kolodziejczak et al.,Appellants, et al., Defendant. |
—[*1] Davidson & O'Mara, PC, Elmira (Ransom P. Reynolds, Jr., of counsel), forplaintiff-respondent.
Appeals from an order of the Supreme Court, Steuben County (Joseph W. Latham, A.J.),entered June 21, 2010 in a personal injury action. The order, insofar as appealed from, denied themotion of defendant Raymond Kolodziejczak and the cross motion of defendant Ray KoloExcavating, Inc. for summary judgment.
It is hereby ordered that the order so appealed from is modified on the law by granting thatpart of the motion of defendant Raymond Kolodziejczak for summary judgment dismissing thenegligent supervision cause of action against him and granting the cross motion of defendant RayKolo Excavating, Inc. for summary judgment dismissing the amended complaint and cross claimagainst it and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action, individually and on behalf of her daughter,seeking damages for injuries sustained by her daughter when two of her fingers were severed bya log splitter (splitter). The accident occurred when plaintiff's daughter was adjusting a crookedpiece of wood on the splitter and plaintiff's infant son simultaneously lowered the handle on thesplitter to activate it. Plaintiff asserted, inter alia, causes of action for negligent supervision andnegligent entrustment against defendants Raymond Kolodziejczak, her children's grandfather(grandfather) and the owner of the property on which the accident occurred, and Ray KoloExcavating, Inc. (Kolo). Supreme Court denied the motion of the grandfather for summaryjudgment dismissing the amended complaint against him and the cross motion of Kolo for, interalia, summary judgment dismissing the amended complaint and cross claim against it.
We conclude that the court erred in denying that part of the grandfather's motion seeking[*2]summary judgment dismissing the negligent supervisioncause of action against him, and we therefore modify the order accordingly. Insofar as theamended complaint alleges that the grandfather had a duty to supervise plaintiff's daughter, it iswell established that a grandparent who exercises temporary custody and control of a child maybe liable for any injury sustained by the child that was caused by the grandparent's negligence(see Appell v Mandel, 296 AD2d 514 [2002]; Adolph E. v Lori M., 166 AD2d906 [1990]; Costello v Marchese, 137 AD2d 482, 483 [1988]). Here, the grandfather methis initial burden on the motion with respect to his alleged negligent supervision of plaintiff'sdaughter by submitting evidence establishing that he did not supervise or control plaintiff'sdaughter at any relevant time, and plaintiff failed to raise a triable issue of fact in opposition(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Insofar as the amended complaint alleges that the grandfather had a duty to superviseplaintiff's son, we note that "[p]roperty owners 'have a duty to control the conduct of thirdpersons on their premises when they have the opportunity to control such persons and arereasonably aware of the need for such control' " (Lasek v Miller, 306 AD2d 835, 835[2003], quoting D'Amico v Christie, 71 NY2d 76, 85 [1987]). Nevertheless, we concludethat the grandfather met his initial burden on the motion with respect to his allegedly negligentsupervision of plaintiff's son by submitting evidence that the grandfather had no reason toperceive a need to control plaintiff's son, and plaintiff failed to raise a triable issue of fact inopposition (see generally Zuckerman, 49 NY2d at 562).
We further conclude, however, that the court properly denied that part of the grandfather'smotion seeking summary judgment dismissing the negligent entrustment cause of action againsthim. We reject the grandfather's contention that his actions merely furnished the occasion bywhich the accident was made possible, i.e., his actions were not a proximate cause of theaccident. "Questions concerning . . . proximate cause are generally . . .for the jury" (Prystajko v Western N.Y.Pub. Broadcasting Assn., 57 AD3d 1401, 1403 [2008] [internal quotation marksomitted]). The grandfather failed to establish as a matter of law that his actions in permittingplaintiff's son and the father of the children, defendant Scott Kolodziejczak, to operate the splitteron the grandfather's property in the presence of plaintiff's daughter were not a proximate cause ofthe accident.
Kolo contends that the court erred in denying its cross motion for, inter alia, summaryjudgment dismissing the amended complaint and cross claim against it because Kolo did not owea duty of care to plaintiff's daughter. We agree, and we therefore further modify the orderaccordingly. "[B]efore a defendant may be held liable for negligence it must be shown that thedefendant owes a duty to the plaintiff" (Pulka v Edelman, 40 NY2d 781, 782 [1976],rearg denied 41 NY2d 901 [1977]; see Clementoni v Consolidated Rail Corp., 30 AD3d 986, 987[2006], affd 8 NY3d 963 [2007]). "The existence and scope of an alleged tortfeasor'sduty is, in the first instance, a legal question for determination by the courts" (Sanchez v Stateof New York, 99 NY2d 247, 252 [2002]; see Galasso v Wegmans Food Mkts., Inc., 53 AD3d 1145 [2008]).
With respect to the negligent supervision cause of action against Kolo, a special relationshipsuch as a master-servant relationship may give rise to a duty to control the conduct of another(see Purdy v Public Adm'r of County of Westchester, 72 NY2d 1, 8 [1988], reargdenied 72 NY2d 953 [1988]). Here, however, because the negligent supervision cause ofaction against the grandfather must be dismissed and the grandfather is the only link betweenKolo and the accident, Kolo cannot be held liable to plaintiff under a theory of negligentsupervision.
With respect to the negligent entrustment cause of action against Kolo, we note that "[t]hequestion of duty . . . is best expressed as 'whether the plaintiff's interests are entitledto legal protection against the defendant's conduct' " (Pulka, 40 NY2d at 782). Weconclude that [*3]Kolo met its initial burden by submitting thegrandfather's affidavit in which he indicated that the accident occurred during his personalpursuit on property with which Kolo had no involvement (see generally Zuckerman, 49NY2d at 562). In opposition to the cross motion, plaintiff failed to raise a triable issue of factwhether Kolo had any involvement in the accident (see generally id.).
All concur except Carni and Martoche, JJ., who dissent in part and vote to reverse the orderinsofar as appealed from in accordance with the following memorandum.
Carni and Martoche, JJ. (dissenting in part). We respectfully dissent in part. We agree withthe majority that Supreme Court erred in denying that part of the motion of defendant RaymondKolodziejczak (hereafter, grandfather) for summary judgment dismissing the negligentsupervision cause of action against him, inasmuch as the grandfather had no reason to perceive aneed to control plaintiff's son. We further agree with the majority that the court erred in denyingthe cross motion of defendant Ray Kolo Excavating, Inc. (Kolo) for, inter alia, summaryjudgment dismissing the amended complaint and cross claim against it. We conclude, however,that the court also erred in denying that part of the grandfather's motion seeking summaryjudgment dismissing the negligent entrustment cause of action against him. We note that thegrandfather and Kolo do not appeal from that part of the order denying plaintiff's motion fordiscovery inasmuch as they are not aggrieved by it. We therefore would reverse the order insofaras appealed from.
Generally, a parent or, in this case, a grandparent, may be liable for injuries to a third-partyresulting from the entrustment of an instrument made dangerous by the age, intelligence,infirmity, disposition or training of the child using the instrument (see generally Nolechek vGesuale, 46 NY2d 332, 338 [1978]). The rationale is that the person responsible for the child"owes a duty to protect third parties from harm that is clearly foreseeable from the child'simprovident use or operation of a dangerous instrument, where such use is found to be subject to[that person's] control" (Rios v Smith, 95 NY2d 647, 653 [2001]; see LaTorre vGenesee Mgt., 90 NY2d 576, 581 [1997]). We cannot conclude that the evidence supportsthe determination that the grandfather entrusted a dangerous instrument, i.e., the log splitter(splitter), to plaintiff's son. Rather, the evidence establishes that the child's father was supervisinghim with respect to the operation of the splitter. It would be inconsistent to conclude that the useof the splitter by plaintiff's son was subject to the grandfather's control and also to conclude, asthe majority does, that the grandfather had no reason to perceive a need to control plaintiff's son.Present—Smith, J.P., Fahey, Carni, Sconiers and Martoche, JJ.