| Arango v Vasquez |
| 2011 NY Slip Op 08311 [89 AD3d 875] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Jason C. Arango, Appellant, v Adrianna Vasquez et al.,Respondents. |
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Thomas K. Moore, White Plains, N.Y. (Andrea G. Sawyers and Dominic P. Zafonte of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of theSupreme Court, Westchester County (O. Bellantoni, J.), entered September 18, 2010, which, upon anorder entered August 23, 2010, granting the defendants' motion for summary judgment dismissing thecomplaint, is in favor of the defendants and against him, dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
Approximately one week before his 17th birthday, the plaintiff allegedly was injured when he wasstruck in the eye by a BB-gun pellet. At the time of the incident, he was visiting the home of his aunt, thedefendant Adrianna Vasquez, and his uncle, Julio Vasquez (hereinafter together the Vasquezes),located in Jefferson Valley (hereinafter the subject premises). The plaintiff had arrived at the subjectpremises the previous day to celebrate his cousin's 18th birthday. Along with some other party guests,he stayed overnight. During the afternoon of September 18, 2005, the plaintiff, his cousin, and severalothers, all 16 years of age or older, left the subject premises with BB guns and walked into the woods.While the plaintiff was sitting on a rock, a BB-gun pellet accidentally discharged from someone else'sBB gun, ricocheted off a tree, and struck the plaintiff in the eye.
In September 2008 the plaintiff commenced this negligence action against his aunt, AdriannaVasquez, and George Lambert, the Public Administrator of Westchester County, inasmuch as his uncle,Julio Vasquez, had died prior to the commencement of the action. The Supreme Court granted thedefendants' motion for summary judgment dismissing the complaint. We affirm.
To hold a defendant liable in negligence, it must be determined that the alleged tortfeasor owed theinjured party a duty of care and, if so, that that duty was breached (see Neidhart v K.T. Brake & Spring Co., 55 AD3d 887, 889 [2008])."The existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question fordetermination by the court" (Demshick vCommunity Hous. Mgt. Corp., 34 AD3d 518, 520 [2006]; see Anand v Kapoor, 61 AD3d 787,792 [2009], affd 15 NY3d 946 [2010]). In making such a determination, the court mustconsider the reasonable expectations of the parties and society generally because the scope of any dutyof care varies with the foreseeability of the [*2]possible harm (seeAlnashmi v Certified Analytical Group, Inc., 89 AD3d 10 [2d Dept 2011]). "Foreseeability doesnot define duty; it merely determines the scope of the duty once a duty is found to exist" (Demshickv Community Hous. Mgt. Corp., 34 AD3d at 520). Courts are generally reluctant to extendliability to a defendant for failing to control the conduct of others, but a court may do so where it findsthat the defendant had actual control over the third person's actions (see Hamilton v Beretta U.S.A.Corp., 96 NY2d 222, 233 [2001]).
Here, the defendants concede that the Vasquezes had a duty to supervise the plaintiff who, at thetime of the incident, was a minor under their care (see Appell v Mandel, 296 AD2d 514[2002]). The degree of supervision, however, depends on the surrounding circumstances and, ingeneral, younger children require closer oversight that older children (see Phelps v Boy Scouts ofAm., 305 AD2d 335, 335-336 [2003]). On their motion, the defendants demonstrated theirentitlement to judgment as a matter of law by establishing that the Vasquezes did not breach their dutyto adequately supervise the plaintiff or his companions. The scope of the Vasquezes' duty to the plaintiffdid not extend to controlling him or his companions, as they were not insurers of their safety (see Moreno v Weiner, 39 AD3d 830[2007]). On the date of the incident, the plaintiff and his companions were all 16 years of age or olderwhen they left the subject premises to engage in a voluntary activity (see Rudden v Bernstein, 61 AD3d 736[2009]; Jarvis v Eastman, 202 AD2d 826 [1994]), it was not unlawful for them to possess BBguns (see Penal Law § 265.05), and it was not reasonably foreseeable that a BB gunwould accidentally discharge a pellet which would then ricochet off a tree and strike the plaintiff in theeye. The plaintiff's remaining contentions either are without merit or have been rendered academic byour determination. Accordingly, the Supreme Court properly granted the defendants' motion forsummary judgment dismissing the complaint. Mastro, J.P., Dillon, Sgroi and Miller, JJ., concur.