J.P. v J. R.

[*1] J.P. v J.R. 2004 NY Slip Op 51363(U) Decided on October 26, 2004 Supreme Court, Dutchess County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 26, 2004
Supreme Court, Dutchess County

J.P., by his Father and Natural Guardian R.P., and R.P., Individually, Plaintiffs.

against

J.R., by his Parents and Natural Guardians, S.R. and D.R., and S.R., Individually, D.R., Individually and SYDNEY G. CORBIN, Defendants.



209xxxx



JAY B. RENFRO, ESQ.

Vergilis, Stenger, Roberts, Pergament & Viglotti, LLP

Attorneys for Plaintiffs

1136 Route 9

Wappingers Falls, NY 12590

WILLIAM GRACE CRANE, ESQ.

Attorney for Defendants R.

11 Market Street, Room 204

Poughkeepsie, NY 12601

CHRISTINA M. BOOKLESS, ESQ.

McCabe & Mack, LLP

Attorneys for Defendant Corbin

P.O. Box 509

Poughkeepsie, NY 12602

JOHNSON & LONEGRAN, LLP

Attorney for Sterling Ins. Co.

P.O. Box 3585

Albany, NY 12203-0585

Christine A. Sproat, J.

Upon the foregoing papers it is hereby ORDERED that defendant Sydney G. Corbin's motion for summary judgment is granted, and plaintiffs' cross-motion for summary judgment on the issue of liability on plaintiffs' causes of action for negligent entrustment against the defendants is denied.

The instant personal injury action arises from an incident in which plaintiff J. P. was struck in the eye by a BB discharged from defendant J. R.'s B.B. gun. The incident occurred on May 19, 2001, in the residence occupied by defendant J. R. and his parents, defendants S. R. and D. R., located at 103 Diddell Road, Wappingers Falls, New York. Defendant Sydney G. Corbin [*2]was the owner of the premises and his daughter, S. R., was allowed, along with her family, to occupy the house in exchange for working on Mr. Corbin's farm. Defendants S. R. and D. R. were not home at the time of the incident, and defendant Sydney G. Corbin, who maintained and occupied a separate residence located at 79 Diddell Road, did not hear of the incident until a neighbor informed him. It is uncontroverted that defendant Sydney G. Corbin was not present at the residence located at 103 Diddell Road when the incident occurred, and had not been asked to watch defendant J. R. while defendants S. R. and D. R. were out. (Examination Before Trial transcript of Sydney Corbin, p. 5-6, Examination Before Trial transcript of J. P., p. 9; Examination Before Trial transcript of D. R., p. 21-22, Examination Before Trial transcript of S. R., p. 19-20, Examination Before Trial transcript of J. R., p. 37-38). Plaintiffs contend that defendant Corbin negligently entrusted his grandson with the B.B. gun, and that as a landowner, defendant Corbin owed a duty to protect plaintiff J.P. from unnecessary exposure to danger, rendering him liable for plaintiff J.P.'s injuries.

Defendant Corbin asserts that he owed no duty to the plaintiff as an out-of-possession owner, and did not negligently entrust his grandson with the B.B. gun. It is fundamental that "[a] property owner . . . has a duty to take reasonable measures to control the foreseeable conduct of the third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others." (Jaume v. Ry Mgt. Co., 2 AD3d 590, 591 (2nd Dept., 2003) citing DeRyss v. New York Cent. R.R. Co., 275 NY 85, Murphy v. Turian House, 232 AD2d 535, Johnson v. Slocum Realty Corp., 191 AD2d 613, Mangione v. Dimino, 39 AD2d 128.) However, this duty only arises "when there is an ability and opportunity to control such conduct, and an awareness of the need to do so." (Jaume, 2 AD3d at 591, citing DeRyss, supra, Murphy, supra, Johnson, supra and Mangione, supra.) In the case at bar, it is uncontroverted that defendant Corbin did not have the opportunity to control the conduct of either defendant J. R. or plaintiff J. P. and was not even aware of the need to do so. "Such elements are 'prerequisites to imposing [common-law] liability upon a landowner' in this type of situation." (Guercia v. Carter, 274 AD2d 553, 554 (2nd Dept., 2000), quoting Demarest v. Bailey, 246 AD2d 772, 773.) Further, a landowner "is not . . . an insurer of a visitor's safety" (Dillman v. Bohemian Citizen's Benevolent Society, 227 AD2d 434 (2nd Dept., 1996) citing Nallan v. Helmsley-Spear, Inc., 50 NY2d 507 (1980)), and where the injury resulted not from any unsafe structural condition of the defendant's land but "as a direct result of the manner in which the injured party engaged in a voluntary activity and the landowner neither participated in the activity nor exercised any supervision and control over the activity," no liability will be imposed. (Jarvis v. Eastman, 202 AD2d 826, 827 (3rd Dept., 1994) citing Macey v. Truman, 70 NY2d 918, Blais v Balzer, 175 AD2d 385, Farley v. Smith, 172 AD2d 800, lv. den. 78 NY2d 859 and Collins v. Petroski, 155 AD2d 799.)

Plaintiffs contend that defendant Corbin's performance of miscellaneous maintenance tasks at J. R.'s residence constituted sufficient control over the "dangerous condition" on the premises to render him liable for plaintiff's injuries. However, "[p]laintiff [J. P.'s] injury was not caused by any defect or unsafe condition left uncorrected by [defendant Corbin], but was the direct result of the manner in which plaintiff and his companions [were playing at J. R.'s residence], which they volunteered to do." (Jarvis, 202 AD2d at 827). Defendant Corbin did not participate in the activity and there is no evidence that [he] directed or supervised the activity." [*3](Id.) The record reveals that defendant Corbin did not know that the boys were firing a B.B. gun, and it is undisputed that defendant Corbin did not even know that his grandson was ever given a B.B. gun. Moreover, "an unreasonable burden would result from the imposition of a duty to guard against the wanton acts of a third party over whom a landlord exerts no control." (Johnson v. Slocum Realty Corp., 191 AD2d 613 (2nd Dept., 1993), quoting Blatt v. NYC Hous. Auth., 123 AD2d 591, 592-593 (2nd Dept., 1986).) In opposition to defendant Corbin's motion for summary judgment, plaintiffs have failed to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact concerning defendant Corbin's liability. Accordingly, defendant Corbin cannot be held liable for plaintiff J. P.'s injuries, and all of the claims against him must be dismissed.

In addition, plaintiffs' cross-motion for summary judgment on their cause of action for negligent entrustment must be denied. "The tort of negligent entrustment is based on the degree of knowledge the supplier of a chattel has or should have concerning the entrustee's propensity to use the chattel in an improper or dangerous fashion." (Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, 227 (2001).) It is well settled that "a parent is responsible for his [or her] failure to exercise reasonable care in allowing his [or her] child to have possession of a dangerous instrumentality which constitutes an unreasonable risk of harm to others..." (Masone v. Gianotti, 54 AD2d 269, 276 (2nd Dept., 1976).) "[R]easonable care [is] defined as that degree of care which a reasonably prudent parent would exercise under the same circumstances." (Id.) In the instant matter there is a triable issue of fact as to whether J. R.'s parents, S. R. and D. R., exercised reasonable care under the circumstances. Accordingly, the granting of summary judgment is not appropriate (See, CPLR §3212(b).)

This matter is adjourned to November 17, 2004 at 9:30 a.m. for a Pre-Trial Conference.

This constitutes the decision and order of this Court.

So ordered.

Dated: October , 2004 Poughkeepsie, New York

_______________________________HON. CHRISTINE A. SPROAT

Supreme Court Justice