Wayne Coop. Ins. Co. v Hawthorne
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Wayne Coop. Ins. Co. v Hawthorne 2012 NY Slip Op 30328(U) February 8, 2012 Supreme Court, Wayne County Docket Number: 10-70073 Judge: John B. Nesbitt Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COURT COUNTY OF WA YNE WAYNE COOPERATIVE INSURANCE COMPANY, as subrogee of \VASH1NGTON VENTURES, LLC, Plaintjfl~ ~vsDONNA HAWTHORNE, Index No. /()-7()(J73 6<010 ISMAL RAMOS, aDd MINNIE HAWTHORNE, Defendants. APPEARANCES: -. '" LAW OFFICE OF DANIEL W. COFFEY (Daniel W_ Coffey, Esq., ofcounscl) Attorneys/hI' Plain/tr! HISCOCK & BAReLA Y, LLP (Mark T. Whitlord, Jr., Esq.) Attorneys fill' Defendants MEMORANDUM - DECISION John 13.Nesbitt, J. Wayne Cooperative Insurance Company ("WCIC" or "plaint(ff') insured a dwelling at 5 Finch Street in the City of Rochester, owned by Washington Ventures, LLC, and leased by defendant Donna Hawthorne. On May 29, 2009, while the policy was in effect, fire significantly damaged the premises and WCIC paid the owner $28,808.17 for its loss under the terms of the policy. Pursuant 10 its right of subrogation, were commen<::edthis action against defendant Donna Hawthorne and her minor daughter, Minnie Bawthorne, who was also residing at the premises at the time of the fire. \VClC seeks a money judgment against the:,e two defendants compensating it for payment made the property owner due to the fire damage. Defendants arc defended and, if necessary, will be mdemnified in this action under a State Farm renter's policy beanng a $100,000 personal liability limit. [* 2] Plaintiff proceeds against defendants upon allegations of fact ostensibly actionable under both negligence and contract theories. Plaintiff posits that the fire was started in the attic by the juvenile play of 6 ycar old Minnie Hawthorne feeding sheets of paper into a fully operating electric space heater, which ignited the paper and consequently the rest of the area once the flaming paper hit the 1100r.This fact implicates two principles of negligence lmv, the first predicating the potential liability of the minor daughter, and the second the imputed liability of her mother. As to the (irst, New York decisional law provides: An infant under four year:) of age is incapable as a matter of law or understanding danger, and hence he or she neither can be found m:gligent nor be held responsible for his or her acts. Above the age of four years, however, if the infant is of sulTicicnt maturity to appreciate danger and take steps to avoid it, he or shc may be chargeable with negligence._ The standard of care for an in/'ant is the degree of care expected o1'a reasonably prudcnt child of the same age, experience, intelligencc and de6'Teeof development" (l A NY PJJ3d 2:23 at 268 1.2012.1)( itations omitted). c This section orthe PH cites the Fourth Department's decision in Tenehrusco v Toys 'R' Us - NYNJ"'A (256 i\D2d 1236 [41h Dep't 1998]) for the proposition that a "four~year-olds's capacity to exercise care is a question oftact for the jury," expressly recognized by the Fourth Department fifty five years earlier in Day v Johnson (265 App Oiv 383, 387 [41h Dep't 1943.1). Thc second tort theory relied upon by plaintiff is knov\'n as negligent entrustment The doctrine derives from the parental duty to control his or her child's conduct. The most expansive statement of this duty can be found in the Restatement r2dl oeTarts 93 ]6: A parent is under a duty to (:xerClse reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, ifthc parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know ol"the necessity and opportunity for exercising such control. Thi;;Restatement cites Noleehek v Gesaule (46 NY2d 332) and Cosla v Hicks (98 AD2d 137 [2d Dept ] 983])as instantiating the New York rule, which is narrower that what the Restatement would otherwise suggest. In the Nolecheck case, ChiefJ udge Brietel cabined the scope of parental duty to one of negligent entrustment of dangerous instruments. Said the Chicf Judge: 2 [* 3] [IJt is well-established that a parent owes a duty to third parties to shield them from an infant child's improvident use ora dangerous in:itrument, at least, ifnot especially, when the parent is aware of and cepable of controlling its usc .... [P]arents are not absolved from liability for hmm incurred by third parties when the parents as adults unreasonably, with respcct to such third parties, permit their children to use dangerous instruments" Plaintiff alleges that defendant mother breached her duty to its insured by permitting or not controlling her child's access to the space heater that caused the fire. The third theory ofliability advanced by plaintiff is one of contract. In en-ecl at the time of the tire was a lease rental agreement signed by defendant mother providing, among other things: 4. RULES & REGULATIONS: ... You agree that you and the other occupants and your guests will comply with the apartment rules which are currently in ciIect and such other and further rules as we may make for the safety, cme, cleanliness, and good order of the property ... You agrce to be responsible for all actions of your family, friends, guc:sts and invitees. *** 12. MAINTENANCE & REPAIRS: ... You agree to keep the premises in a clean and tenm1table condition at all times and to repair the premises or property: a. When dama.ge is caused by misuse or neglect, rather than as a consequence solely of normal and reasonable wear. '" c. When dama:~e results from activities or actions which violate this agreement or the apartment rules by you or your guest. If you fail to make repairs or replacement, we may do so at your expense and charge to you the costs ofthe repair or replacement as added rent which shall be due and payable under the terms and conditions of normal rent. *** 15. FIRE HAZARDS: You shall not permit any hazardous act or store hazardous substances, which might cause fire or that will increase the rate of lllsurancc. PlaintitI alleges that the defendant mother was responsible for the acts of her daughter under paragraph 4 of the lease and that paragraphs 12 ,md 15 were violated when the daughter "misused or neglected" the premises and engaged in a "hazardous" act when she stuck paper into the space heater. Defendants move for summary judgment dismissing the complaint pursuant to CPLR 3212. They first argue that, as a matter oflaw, the action against defendant mother cannot stm1deven ifthe ., o [* 4] facts arc as plaintiff clauTIs. Second, defendants argue that plaintiff has not presented sufficlcnt evidence in admissible form to support it:; claim that the defendant daughter started the fire. course, inasmuch as defendant's or first argument comes in the context of a motion for summary judgment, we are rcminded that summary judgment is a "drastic remedy and should not be granted where there is any doubt as to the existence of triable issues" (Dal Construction Corp_ v City (djVew York, 108 AD2d 892, 894 [2d Dep't 1985]). Only where "no reasonable view of the evidence" supports a claim or defense should a court rule upon its merits as a mattcr of law (Eddy v Syracuse University, 78 AD2d 989, 990 [4th Dcp't 19801). "Where varying inferences arc possible' the issue remains "a question offact for the jury" (Mirand v City (dNew York, 84 NY2d 44 [1994]). Evidence adduced upon a motion for summary judgment must be viewed "in the light most favorahle" to tlw party opposing the motion (Wallace v Water pointe at Oakdale Shores, Inc., 248 AD2d 383 r2d Dep't I~98]). In this case, the presumptive charge to thejury as suggested by the PJI reads in pertinent part as follows: PJI 2:260 Vicarious Responsibilitv - Family Relationship - Liabilitv of Parent for Tort of Child - Negligence in Permitting Use ofInstrumentalitv A parent is not responsible for the acts of her child, but is responsible for the failure to use reasonable care in entrusting to or leaving in the possession of the child an instrument which, in vicv,.'of the nature of the instrument, the age, intelligence, and disposition for the child and her prior experience with sucb instrument, constitutes an unreasonable risk (oj' harm of otbers. Reasonable care means that degree of care which a reasonably prudent parent would use wlder the same circumstances. Defendants argue that even assuming the plaintiff can prove all that it alleges and viewing that proof most favorably to the plaintiff: the plaintiflnevertheless falls short in raising an issue of fact whether the ddcndant mother's alleged neglect reaches the degree of culpability the law requires for it to be actionable. The complaint agamst Donna l-Jawthorne, defendants argue, states no more than a nonactionable claim of negligent parental supervision, thus htiling to state a cognizable cause of action. Defendants are, of course, correct that, under the H%dook rule, "[a] parent's negligcnt failure to supervise a child is generally held not to constitute a tort actionable by the child" (LaTorre 4 [* 5] v Genesee Management, 51 1.1974]). The J-I%(/ook Inc., 90 NY2d 576, 579 [1997], citing J-!o!odook v Spencer, 36 NY2d 35, rule also bars actions by third parties against parents lor the tortious acts oftheu children ",,-henpredicated simply upon general claims ofneglJgcnt supervision (No/echeck v Gesua/e, 46 NY2d 332, 340 [1978] ["N egligent supervision of children, in general, creates no direct unreasonable hazard to third parties."]). This "sound rule," however, is accompanied by "sound exceptions," which include "the duty owed by parents to third parties to control their use of dangerous instruments to avoid harm to third parties" (ld at 339, 341). This exception is a"very specific and narrow complement to the Holodook princIple" (LaTorre v Genesee Management, NY2d 575,581 90 [1997]), and "is limited to circumstances where a parent's conduct crcates a particularized danger to third persons that is plainly foreseeable (Rios Ii Smith, 95 NY2d 647, 652 ["2001]).Negligent supervision of children entrusted with dangerous lI1struments call portend foreseeable injury to third parties, while negligent supervision of children without such instruments generally do not. "Whether a particular object qualifies as a dangerous instrument depends on the nature of the instrument and the facts pertaining to its u:;e, including the particular attributes of the minor uS1l1g or operating the item" (Rio.\' v S'mith, 95 NY2d 647, 653 [200 I]). Generally, it is a question of laet properly submitted for jury determination \\'hether a particular object so quali fies (Rios, supra." see e.g Keffy v Di Cerbo, 27 AD3d 1082 [41~' ept 2006[). D An older case that the Court views as instrueti ve ,md analogous to the instant case is Craji v Mid Is/and Dep 't Stores (112 AD2d 969 ["2d Dept 1985]).1 There a boy liberated a container of gasoline from his fatber's garage and took it to a nearby playhouse. The boy and a friend poured the ga::>olineonto a wooden board and applIed lighted matches to the pooled areas to ignitt: Hames. Unfortunately, the flames flashed back into the bottle, prompting the boy to throw the bottle and in doing so, set his friend on tire. Relying upon No/eehek v Gesiia/e (46 NY2d 332, 338 I: 1978]), the Appellate Division held that the "determination of whether gasoline is a dangerous instrument involves a flexible standard dealing with several factors including the nature of the instrument, as well as the age and experience of the child, and as such is a question for the trier offact" (112 AD2d at 9(9). The 1I15tantcase is analogous as alleging The Craft case was cited with approval in Rios v Smith (95 NY2d 647, 653 [2001]) and Meyers v 141) Automotive, Inc. ( 295 AD2cl 104 [l sl Dept 2002]). I 5 [* 6] a case of youthful mischievousness or curiosity attracted by the prospect offire sparked by touching flammable product with a fire-if,'lliting agent. As in Craft, it would appear a question of fact for the trier of fact whethcr, under the circumstances of this case, the space heater was a dangerous instrument. In support of their motion for summary judgment, defendants emphasize two factors that arguably render dismissal appropriate. These factors inhere in the nature of the parent's duty. That duty is "t6 protcct third parties from hann that is clearly foreseeable from the child's improvident use or operation of a dangerous instrument, where such usc is found to be subject to the parent's control" (18 PJI 2:260 at 723 [2012] citing Rios v Smith, supra; LaTorre v Genesee Managemenr, Inc., supra [emphasis added"J). Regarding the foreseeability issue, defendam argues that, as a matter of law, unless the instrument at issue is inherently dangerous (such that the risk is unreasonable a priori) or the parent has notice o[some propensity of the child to employ or engage an other than inherently dangerous instrument in a dangerous manner (such that the risk is unreasonable a posteriori), the plaintiffs damages were not foreseeable and hence not actionable. While the idea of an "inherently dangerous instrument" fmds provenance in some areas of law (see e_g Prosser v Counly ofEr;e, 244 AD2d 942 [4th Dept 1997]), it has not been introduced into the law of negligent entrustment so far as this Court's research reveals, except perhaps as a descriptive claim denoting a degree of dangerousness characterizing one aspect of a case- specific, fact-driven detenninatiol1. Other equally important factors are the age, experience, maturity, and disposition of the child to whom the instrument is entrusted. As the Fourth Department long ago recognized: ;'Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caUl.ion towards them must calculate upon this, and take precautions" (Day v Johnson, 265 AD 383, 387 l4lh Oept 1943], quoling Union Pacific Railway Co v.McDonald, 152 US 262, 277 [1984]). Under the facts of this case, the nature of the instrument at issue, the relevant characteristics of six year aIds in general and the minor defendant in particular, and the precautions taken by the defendant mother to ensure proper instruction and supervision of the minor defendant arc factors to be sieved and weighed by the trier of fact to determine whether defendant mother breached her duty of care. 6 [* 7] The Court has examined the other contentions of defendants and find them insufficient to 'vvarrantgranting summary judgment on their behalf. The issue of the degree of defendant mother's control over the minor defendant at the time of the fire ~;ufficient to imply a duty of care to third parties is a question to be determined by the trier oUaet. Lastly, the Court does not find as a matter of law that there are no viable evidentiar:( avenues available to plaintiff to raise an issue of fact whether the minor defendant started the fire as described in the fire investigation report. Accordingly, the motion for summary judgment is denied. Dated: February 8. 2012 Lyons, New York I f /\;;?/-' / ,,<' ! 0--? JOI~!~/N~~~rr Acti'ng $\.tpreme Court Justice I / 7 !
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