Opinion
524839
07-05-2018
Alexis PINEIRO, Respondent, v. Roger RUSH et al., Appellants.
Wilson, Bave, Conboy, Cozza & Couzens, PC, White Plains (James A. Rogers of counsel), for appellants. Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), for respondent.
Wilson, Bave, Conboy, Cozza & Couzens, PC, White Plains (James A. Rogers of counsel), for appellants.
Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Mulvey, J.
Appeal from an order of the Supreme Court (Gilpatric, J.), entered March 28, 2017 in Ulster County, which denied defendants' motion for summary judgment dismissing the complaint.
At all times relevant, defendant Megan Myrick operated a day-care business out of the residence she shared with defendant Roger Rush in the Town of Katrine, Ulster County. On the afternoon of July 11, 2014, plaintiff went to the premises to pick up her daughter. Upon arriving, plaintiff entered the enclosed front porch of the residence, which she described as cluttered with numerous toys, objects and pieces of furniture. There were also several children on the porch, including Myrick and Rush's infant child, who plaintiff proceeded to pick up. While plaintiff was walking along the porch toward the front door of the residence with the infant child in her arms, her right leg was struck by a bicycle being operated by Myrick and Rush's three-year-old child, causing her to lose her balance and fall to the ground. Plaintiff thereafter commenced this action alleging that defendants negligently maintained the porch and failed to adequately supervise the three-year-old child. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint. Supreme Court denied the motion, prompting this appeal.
Defendants' principal contention on this appeal is that the conduct of the three-year-old child was, as a matter of law, the sole proximate cause of plaintiff's accident. We cannot agree. Typically, the question of proximate cause presents a factual issue for a jury to resolve (see Hain v. Jamison, 28 N.Y.3d 524, 529, 46 N.Y.S.3d 502, 68 N.E.3d 1233 [2016] ; Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 737, 985 N.Y.S.2d 448, 8 N.E.3d 823 [2014] ; Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] ). "[I]t is only when one conclusion may be drawn from the established facts that the question of legal cause may be decided as a matter of law" ( Grant v. Nembhard, 94 A.D.3d 1397, 1398, 943 N.Y.S.2d 272 [2012] [internal quotation marks, brackets and citations omitted]; see Hain v. Jamison, 28 N.Y.3d at 529, 46 N.Y.S.3d 502, 68 N.E.3d 1233 ; Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 44, 760 N.Y.S.2d 79, 790 N.E.2d 252 [2003] ; Kriz v. Schum, 75 N.Y.2d 25, 34, 550 N.Y.S.2d 584, 549 N.E.2d 1155 [1989] ; Derdiarian v. Felix Contr. Corp., 51 N.Y.2d at 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 ). Further, it is settled that "there may be more than one proximate cause of an accident" ( O'Brien v. Couch, 124 A.D.3d 975, 977, 1 N.Y.S.3d 485 [2015] [internal quotation marks and citation omitted]; see Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554, 560 n. 2, 693 N.Y.S.2d 493, 715 N.E.2d 495 [1999] ; Rivera v. Fritts, 136 A.D.3d 1249, 1250, 25 N.Y.S.3d 741 [2016] ). Here, the actions of the three-year-old child were unquestionably the precipitating factor in plaintiff's accident. However, plaintiff explained that, after being struck by the bicycle, she attempted to regain her balance but was unable to because she was "trapped" between a table and an ottoman and could not take a step in any direction without tripping on one of the various objects scattered about the porch. She further averred that, had the floor not been so cluttered with toys, objects and furniture, she would have been able to regain her balance before falling. Viewing this evidence in the light most favorable to plaintiff and affording her the benefit of every favorable inference that may be drawn therefrom (see Acton v. 1906 Rest. Corp., 147 A.D.3d 1277, 1279, 47 N.Y.S.3d 788 [2017] ; Baird v. Gormley, 116 A.D.3d 1121, 1124, 983 N.Y.S.2d 662 [2014] ), we find a triable issue of fact as to whether the condition of the porch was a proximate cause of plaintiff's injuries (see Kraft v. Loso, 154 A.D.3d 1265, 1266, 63 N.Y.S.3d 566 [2017] ; Jankite v. Scoresby Hose Co., 119 A.D.3d 1189, 1191, 990 N.Y.S.2d 678 [2014] ; Boudreau–Grillo v. Ramirez, 74 A.D.3d 1265, 1267, 904 N.Y.S.2d 485 [2010] ; Bush v. Mechanicville Warehouse Corp., 69 A.D.3d 1207, 1209, 895 N.Y.S.2d 212 [2010] ; Scala v. Scala, 31 A.D.3d 423, 425, 818 N.Y.S.2d 151 [2006] ). Under these circumstances, the issue of whether the actions of the three-year-old child or the allegedly cluttered condition of the porch, or both, proximately caused plaintiff's accident should be decided by a jury.
Defendants raise no arguments in their brief with regard to Supreme Court's conclusion that triable issues of fact exist as to whether they maintained their property in a reasonably safe condition (see generally
Nor did Supreme Court err in denying that portion of defendants' motion that sought dismissal of plaintiff's negligent supervision claim. "[I]t is well-established law that a parent owes a duty to third parties to shield them from an infant child's improvident use of a dangerous instrument, at least, if not especially, when the parent is aware of and capable of controlling its use" ( Nolechek v. Gesuale, 46 N.Y.2d 332, 338, 413 N.Y.S.2d 340, 385 N.E.2d 1268 [1978] ; see Rios v. Smith, 95 N.Y.2d 647, 653, 722 N.Y.S.2d 220, 744 N.E.2d 1156 [2001] ; LaTorre v. Genesee Mgt., 90 N.Y.2d 576, 581, 665 N.Y.S.2d 1, 687 N.E.2d 1284 [1997] ). As the Court of Appeals has explained, "[c]hildren might, at various points in their development, be permitted, and properly so, to use bicycles, lawn mowers, power tools, motorcycles, or automobiles, all of which are, in some contingencies, ‘dangerous instruments’ " ( Nolechek v. Gesuale, 46 N.Y.2d at 338, 413 N.Y.S.2d 340, 385 N.E.2d 1268 ; see Rios v. Smith, 95 N.Y.2d at 653, 722 N.Y.S.2d 220, 744 N.E.2d 1156 ). "[T]he determination of whether a particular instrument is dangerous ‘depends upon the nature and complexity of the allegedly dangerous instrument, the age, intelligence and experience of the child, and his [or her] proficiency with the instrument’ " ( Santalucia v. County of Broome, 205 A.D.2d 969, 970, 613 N.Y.S.2d 774 [1994], lv dismissed 84 N.Y.2d 923, 621 N.Y.S.2d 521, 645 N.E.2d 1221 [1994], quoting Bottillo v. Poette, 152 A.D.2d 840, 841, 544 N.Y.S.2d 47 [1989] ; see Rios v. Smith, 95 N.Y.2d at 653, 722 N.Y.S.2d 220, 744 N.E.2d 1156 ; Sorto v. Flores, 241 A.D.2d 446, 447, 660 N.Y.S.2d 60 [1997] ). Where the record is sufficiently developed, such a determination may be made as a matter of law (see Sorto v. Flores, 241 A.D.2d at 447, 660 N.Y.S.2d 60 ; Santalucia v. County of Broome, 205 A.D.2d at 970, 613 N.Y.S.2d 774 ).
Other than the child's age, the pertinent factors are only hinted at in the record. The pictures in the record depict a typical children's bicycle with training wheels, but no evidence was presented as to this three-year-old's prior experience or proficiency with bicycles. In fact, the only evidence even potentially bearing on this issue is Myrick's testimony that the bicycle was "fairly new"—from which it might be inferred that this young child did not have a great deal of experience in operating it. Moreover, a jury could find that the area in which the three-year-old child was riding the bicycle—the narrow porch of a day-care facility wherein various toys, objects and items of furniture were strewn about and people were present—was not appropriate for that use and that the child's use of the bicycle under such circumstances created a foreseeable risk of harm to others (compare Sorto v. Flores, 241 A.D.2d at 447, 660 N.Y.S.2d 60 [finding that a bicycle was not a dangerous instrument when ridden by a 5½–year–old child in a parking lot]; Santalucia v. County of Broome, 205 A.D.2d at 970, 613 N.Y.S.2d 774 [concluding that a 16–inch bicycle was not a dangerous instrument when ridden on a park path meant for bicycling by a five-year-old who had been riding the bicycle some two years prior to the accident, possessed the basic skills to ride it and never had a prior accident with it] ). Under the particular facts and circumstances presented here, the issue of whether the bicycle was a dangerous instrument is a question of fact to be resolved by a jury (see Rios v. Smith, 95 N.Y.2d at 653, 722 N.Y.S.2d 220, 744 N.E.2d 1156 ; Bottillo v. Poette, 152 A.D.2d at 841, 544 N.Y.S.2d 47 ; Alessi v. Alessi, 103 A.D.2d 1023, 1023–1024, 478 N.Y.S.2d 396 [1984] ; Lofreddo v. Town of Brookhaven, 87 A.D.2d 623, 623, 448 N.Y.S.2d 245 [1982] ; Lalomia v. Bankers & Shippers Ins. Co., 35 A.D.2d 114, 117, 312 N.Y.S.2d 1018 [1970], affd 31 N.Y.2d 830, 339 N.Y.S.2d 680, 291 N.E.2d 724 [1972] ; compare Sorto v. Flores, 241 A.D.2d at 447, 660 N.Y.S.2d 60 ; Santalucia v. County of Broome, 205 A.D.2d at 970, 613 N.Y.S.2d 774 ).
Clark and Rumsey, JJ., concur.
Lynch, J. (concurring in part and dissenting in part).
We respectfully dissent, in part. As the majority points out, the record includes a photograph depicting a typical child's bicycle with training wheels suitable for a three-year-old's use. Under the circumstances presented, we cannot agree that the child's use of the bicycle while at play on her own front porch allows for any characterization of the bicycle as a dangerous instrument. It follows that plaintiff's claim of negligent supervision fails as a matter of law and, therefore, we would dismiss said cause of action (see Nolechek v. Gesuale, 46 N.Y.2d 332, 338–339, 413 N.Y.S.2d 340, 385 N.E.2d 1268 [1978] ; Santalucia v. County of Broome, 205 A.D.2d 969, 970, 613 N.Y.S.2d 774 [1994], lv dismissed 84 N.Y.2d 923, 621 N.Y.S.2d 521, 645 N.E.2d 1221 [1994] ).
ORDERED that the order is affirmed, with costs.
Egan Jr., J.P., concurs.
Kraft v. Loso, 154 A.D.3d 1265, 1266, 63 N.Y.S.3d 566 [2017] ; Acton v. 1906 Rest. Corp., 147 A.D.3d 1277, 1278, 47 N.Y.S.3d 788 [2017] ). Thus, any challenge thereto is deemed abandoned (see Teves v. Greenspun, 159 A.D.3d 1105, 1106 n. 2, 72 N.Y.S.3d 191 [2018] ; Phillips v. McClellan St. Assoc., 262 A.D.2d 748, 749 n., 691 N.Y.S.2d 598 [1999] ).