DePerno v Peter Hans

[*1] DePerno v Peter Hans 2007 NY Slip Op 52518(U) [18 Misc 3d 1119(A)] Decided on November 20, 2007 Supreme Court, Cortland County Rumsey, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2007
Supreme Court, Cortland County

Patricia DePerno and Charles DePerno, Plaintiff,

against

Peter Hans, Sr., Peter D. Hans, Jr. and Ryan Hans, Defendants.



39799



APPEARANCES:

HICKEY, SHEEHAN & GATES, P.C.

By:Gregory A. Gates, Esq.

Attorneys for Plaintiff

P.O. Box 2124

Binghamton, New York 13902

LAW OFFICE OF LAURIE G. OGDEN

By:Matthew J. Roe, Esq.

Attorneys for Defendant, Peter D. Hans, Jr. and Ryan Hans

441 South Salina Street

The Galleries of Syracuse

2nd Floor, No.364

Syracuse, New York 13202

GOZIGIAN, WASHBURN and CLINTON

By:Edward Gozigian, Esq. Attorneys for Defendant, Peter Hans, Sr.

Key Bank Building

P.O. Box 431

Cooperstown, New York 13326

Phillip R. Rumsey, J.

This case arises out of an unfortunate accident in which a golf cart, driven by defendant Ryan Hans - then 8 years old - collided with his aunt, Patricia DePerno (hereinafter plaintiff; her husband sues derivatively), who was washing her car. Plaintiffs, together with Ryan and his father (defendant Peter Hans, Jr.) and mother, were attending a weekend-long family reunion at the premises of defendant Peter Hans, Sr. (Ryan's grandfather). On the day of the incident, some individuals were involved in a paintball game on an adjacent parcel of land, and Ryan had been using the golf cart, which was owned by his grandfather, to ferry supplies out to the area where the paintball activity was occurring.

Ryan was not deposed, and claims to remember nothing of the accident. Shortly after the occurrence, however, he is reported to have told his father that he had been following a cousin who had suggested that they "go for a ride" and taken another cart (Deposition of Peter Hans, Jr., dated October 12, 2006, p. 7), and that he "couldn't turn [the cart] quick enough" to avoid the collision (id., p. 8). Ryan's mother also witnessed the accident; she was sitting about 10-15 feet from plaintiff when she saw Ryan "jump[] in the golf cart and [take] off," colliding with plaintiff, who was between the front of the cart and the side of her own vehicle (Deposition of Brenda Hans, dated January 30, 2007, pp. 7-9).

Plaintiffs commenced this action, charging the adult defendants (Ryan's father and grandfather) with, inter alia, negligently entrusting a dangerous instrument - the golf cart - to a minor. Issue has been joined and discovery completed. Peter Hans, Jr. and Peter Hans, Sr. now move for summary judgment, and plaintiff cross-moves for summary judgment on the issue of Ryan's negligence.

The adult defendants, both charged with negligent entrustment,[FN1] argue that as a matter of law, given the prevailing circumstances, the golf cart cannot be considered a "dangerous instrument". Whether an item may be so classified depends on several factors, including the nature and complexity of the instrument itself, the particular attributes (e.g., age, maturity, intelligence, and physical characteristics) of the minor to whom it has been entrusted, and his or her experience and proficiency with the instrument (Rios v Smith, 95 NY2d 647, 653 [2001]; Botillo v Poette,152 AD2d 840, 841 [1989]). While it is relevant, in this regard, that Ryan and other children were regularly permitted to use the golf carts, had done so on many occasions without incident, and were believed by their relatives to be sufficiently "responsible" to operate the carts, those facts are not necessarily dispositive (see, Kelly v DiCerbo, 27 AD3d 1082, 1083 [2006]); other factors, such as the nature of the golf cart and its potential for causing injury, and Ryan's young age and small size (as evidenced by testimony that he was able to reach the pedals of the cart only by sitting on the edge of the seat [Deposition of Patricia DePerno, dated October 12, 2006, p. 61]), must also be considered.

While courts have sometimes held, as a matter of law, that an item was not a "dangerous [*2]instrument," those cases involved things intended to be used by children (e.g., a bicycle, a see-saw, a skateboard [see, Sorto v Flores, 241 AD2d 446 (1997); Pietrzak v McGrath, 85 AD2d 720 (1981); Young v Dalidowicz, 92 AD2d 242 (1983), app dismissed 59 NY2d 967]) or, in a few instances, ordinary household items (e.g., a coffee urn, a hot pizza [see, Simcha v Simcha, 292 AD2d 591 (2002); Keohan v DiPaola, 97 AD2d 596, 597 (1983)]). A full-sized golf cart - a motorized vehicle, capable of attaining sufficient speed to cause substantial damage to people and property in its path, and designed to be operated by an adult - has more in common with an All-Terrain Vehicle (ATV), boat, or motorized bicycle, all of which have been found to be potentially dangerous in the hands of minors (see, Rios; Kelly; cf., LaLomia v Bankers & Shippers Ins. Co., 35 AD2d 114 [1970], affd 31 NY2d 830), than with a hot pizza or a bicycle.

Consequently, this court cannot conclude, as a matter of law, that a golf cart is not a "dangerous instrument" when placed into the hands of an 8-year-old child, for operation on a family estate where there are numerous adults and children engaged in various activities. Inasmuch as both Peter Hans, Sr. and Peter Hans, Jr. were on the premises, and either could have prevented Ryan from driving the cart (Peter Hans, Sr. by virtue of his control over the cart, which he owned, and Peter Hans, Jr. because of his parental relationship and concomitant control over his son's activities), their respective motions for dismissal of plaintiff's causes of action for negligent entrustment must be denied.

Turning to the claims against Peter Hans, Sr. for negligent supervision and premises liability, the mere fact that Ryan's parents were present does not necessarily preclude a finding of negligence on the part of the property owner, as a contributing cause of plaintiff's injuries. As property owner, Peter Hans, Sr. had a duty to control the activities occurring on his premises - including the activities of his grandson - if he had the opportunity to do so, and could reasonably foresee the need for such control (see, Mangione v Dimino, 39 AD2d 128, 129 [1972]). He clearly had the ability to control Ryan's use of the golf carts, and the issue of foreseeability is, in this instance, one for the jury. On the record presented, it cannot be said that Peter Hans, Sr. was not negligent as a matter of law.

Finally, plaintiffs seek summary judgment with respect to their claims against Ryan Hans, on the basis of res ipsa loquitor. The fact of the collision, plaintiffs argue, together with the undisputed fact that the cart was being operated by Ryan, is sufficient to compel a finding of negligence on Ryan's part.

The doctrine of res ipsa loquitor permits a plaintiff to shift the burden of proof to defendant, in a negligence action, without actually coming forth with proof of negligence, and this is what plaintiffs have attempted to do here. Unable to prove exactly how or why Ryan was unable to turn' the cart, or avoid the collision - and thus, that his inability resulted from a failure to exercise reasonable care in driving the vehicle - plaintiffs posit that a collision between a golf cart and a pedestrian "would normally not occur in the absence of negligence" by the driver. The court is not persuaded.

Even were Ryan to be held to an adult standard of care, due to the nature of the activity in which he was engaged (see, e.g., Costa v Hicks, 98 AD2d 137 [1983]; Smedley v Piazzola, 59 AD2d 940 [1977]; Neumann v Shlansky, 58 Misc 2d 128, 134 [1968], affd 36 AD2d 540; but [*3]see, Hudson-Connor v Putney, 192 Or. App. 488, 497 [2004]),[FN2] the court cannot conclude that the only possible cause of a collision of this type is the driver's negligence. Drivers are often faced with unanticipated or emergency situations, such as unexpected behavior of their vehicles, and are sometimes unable to avoid collisions - with other vehicles, pedestrians, or objects - despite taking all reasonable steps to do so. Such occurrences may be caused by sudden and unforeseeable mechanical malfunctions, unanticipated changes in terrain, or other factors.[FN3]

Moreover, the initial inquiry as to whether Ryan was even sui juris - i.e., capable of understanding the danger and exercising care to avoid it, such that he could be found negligent - is one of fact (see, Gerber v Boorstein, l13 App Div 808 [1906]), which must be resolved before any finding of negligence can be made. If Ryan was non sui juris at the time of the accident, then it necessarily occurred without any negligence on his part.

Nor have plaintiffs shown that the golf cart was in Ryan's "exclusive control" during the time period leading up to the accident. Not only was Ryan not responsible for maintaining the vehicle, such that a brake or steering failure, or other mechanical malfunction, would necessarily be attributable to him, but other children had been using the carts throughout the weekend, until the accident occurred. The necessary factors for application of the doctrine of res ipsa loquitor not being present, plaintiffs' motion must be denied.

All of the pending motions are denied, for the reasons stated herein. This decision shall constitute the order of the court.

Dated: November 20, 2007

Cortland, New York

_______________________________

HON. PHILLIP R. RUMSEY

Supreme Court Justice Footnotes

Footnote 1: Peter Hans, Sr. is also charged with negligently supervising his grandson, and with failing to keep his premises in a reasonably safe condition (by failing to prevent or eliminated the hazard posed by Ryan's operation of the cart).

Footnote 2:Notably, the court has found no case in which a child as young as 8 years old was held to an adult standard of care, due to his or her engagement in a typically adult activity.

Footnote 3: Even if the cart was properly maintained and in generally good working order earlier in the weekend (as testified to by Peter Hans, Sr.), the record does not establish that the accident was not caused by a mechanical problem that either occurred suddenly, or was undetectable before it caused a malfunction.