Panlilio v Vergakis

[*1] Panlilio v Vergakis 2008 NY Slip Op 52616(U) [22 Misc 3d 1108(A)] Decided on December 9, 2008 Supreme Court, Nassau County Iannacci, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 9, 2008
Supreme Court, Nassau County

Richard Panlilio, an infant under the age of fourteen years, by his Father and Natural Guardian, RAFAEL PANLILIO, and RAFAEL PANLILIO, Individually, Plaintiff(s),

against

Melissa Vergakis AND WEN CHENG LIU, Defendant(s).



7316/07



PLAINTIFF'S ATTORNEY

JOSEPH PERRINI III

2876 MERRICK RD.

BELLMORE, NY 11710

516-221-7900

DEFENDANT'S ATTORNEY'S

NASHAK, FRANK, GOERLICH

1979 MARCUS AVENUE, SUITE 220

LAKE SUCCESS, NY 11042

516-326-4848

ABAMONT & ASSOC.

200 GARDEN CITY PLAZA, SUITE 400

GARDEN CITY, NY 11530

516-742-8058

Angela G. Iannacci, J.

Upon the foregoing papers, the motion by the defendant Melissa Vergakis and the cross motion by the defendant Wen Cheng Liu, both seeking summary judgment dismissing the complaint as against them, are determined as hereinafter provided:

The plaintiffs commenced this action seeking to recover damages for negligent entrustment of an aluminum baseball bat. On May 2, 2006, the infant plaintiff, then five [*2]years old, was struck in the face by an aluminum baseball bat while at a playground with other children.

The incident took place in the playground area between a swing set and a slide at McVey Elementary School where the infant plaintiff attended nursery school. No bases were used nor was a baseball diamond set up in the area. There was an adjacent baseball field that was not being utilized by the boys.

George Vergakis, the five year old son of defendant Melissa Vergakis, had been continuously swinging an aluminum baseball bat and struck the infant plaintiff on the follow through. The bat was allegedly given to George by Jeffery Liu, the five year old son of defendant Wen Cheng Liu although defendant Liu denied that it was his son's bat. Defendant Liu testified that he was concerned for his son Jeffrey's safety because defendant Vergakis' son, George was continuously swinging the bat. He was not swinging after a ball was thrown. Defendant Liu testified that defendant Melissa Vergakis was present in the playground area while her son George continuously swung the bat.

The law in New York is settled that a parent can not be held liable for the negligent supervision of his or her children (see Holodook v Spencer, 36 NY2d 35 [1974]). There are two exceptions to this general rule: (1) a parent may be liable if his or her child has a tendency to engage in vicious conduct and the parent is aware of such tendency (see LaTorre v Genesee Mgmt., 90 NY2d 576 [1997]; Linder v Bidner, 50 Misc 2d 320 [Sup. Ct., Queens Cnty, Shapiro, J., 1966]); and (2) where a parent negligently entrusts a dangerous instrument to his or her child (see Rios v Smith, 95 NY2d 647 [2001]; Nolechek v Gesuale, 46 NY2d 332 [1978]). The first exception does not apply because there is no evidence that George Vergakis had any vicious propensity. In fact, the incident appears to have been completely accidental.

With regard to negligent entrustment, "a parent owes a duty to protect third parties from harm that is clearly foreseeable from the child's improvident use or operation of a dangerous instrument, where such use is found to be subject to the parent's control" (Rios v Smith, supra at 653). The determination of whether a particular object qualifies as a dangerous instrument hinges upon the nature of the instrument, such as its size, shape, weight and operation (see Alessi v Alessi, 103 AD2d 1023 [4th Dept. 1984]), as well as the age, intelligence and proficiency of the child using it (see Rios v Smith, supra; Simcha v Simcha, 292 AD2d 591 [2d Dept. 2002]; DiChiaro v Gapanoff, 270 AD2d 450 [2d Dept. 2000]; Sorto v Flores, 241 AD2d 446 [2d Dept. 1997]).

Although this determination is often fact specific, courts have held as a matter of law that items commonly used by children, of suitable age, and in a manner consistent with their intended use, may not be classified as dangerous instruments (see Lasek v Miller, 306 AD2d 835 [4th Dept. 2003] [trampoline used by nine-year-old]; Simcha, supra [six-year-old carrying hot water from coffee urn]; DiChiaro, supra [trampoline used by eleven-year-old]; Sorto, supra [five-and-one-half-year-old on bicycle]; Santalucia v County of Broome, 205 AD2d 969 [3d Dept. 1994] [five-year-old on bicycle]; Young v Dalidowicz, 92 AD2d 242 [2d Dept. 1983] [skateboard]; Pietrzak v McGrath, 85 AD2d 720 [2d Dept. 1981] [eight-year-old on a seesaw]; Arciniega v Voelkel, 12 Misc 3d 1167(A) [Sup. Ct., Suffolk Cnty; Werner, J.; 2006] [baseball bat used during backyard game]; Fuzie v South Haven School Dist. No. 30, 146 Misc 2d 1006 [Sup. Ct., Suffolk Cnty.; Copertino, J.; 1990] [toothpick used by 5-year-old]; Schuh v Hickis, 37 Misc 2d 477 [Sup. Ct., [*3]Nassau Cnty.; Gulatta, J.; 1962] [wiffle ball bat used by fourteen-year-old]).

In other cases, where the item has the potential for serious injury, the courts have held them to be dangerous instruments as a matter of law (see Nolechek, supra [motorcycle operated by sixteen-year-old]; Zellers v Devaney, 155 Misc 2d 534 [Sup. Ct., Orange Cnty; Miller, J.; 1992] [BB gun used by fourteen-year-old]), or have found that such determination involves issues of fact which must be left to the jury (see Rios, supra [ATV operated by seventeen-year-old]; Kelly v Di Cerbo, 27 AD3d 1082 [4th Dept. 2006] [boat]; Ripton v Gracie, 266 AD2d 885 [4th Dept. 1999] [moped operated by fourteen-year-old]; Alessi, supra [toy airplane used by six-year-old]; Deperno v Hans, 18 Misc 3d 1119(A) [Sup. Ct., Cortland Cnty.; Rumsey, J.; 2007] [golf cart operated by eight-year-old]).

Here, based upon the young age and lack of experience of the participants and the location of the incident, the determination of whether the aluminum baseball bat is a dangerous instrument should be left to the jury.

The motion and cross motion are denied.

This constitutes the decision and order of the court.

Dated: December 9, 2008Angela G. Iannacci, J.S.C.