Opinion
02 Civ. 8796 (SAS)
March 9, 2004
Alison H. Reiss, Esq., Reiss Motta, LLP, Philadelphia, PA, for Plaintiff
Craig A. Lamster, Esq., Galvanao Xanthakis, PC, New York, NY, for Defendant Lewis Donnelly
Jon D. Lichtenstein, Esq., Gordon Silber PC, New York, NY, for Defendant The Vermont Castings Majestic Products Co.
Joshua M. Glaser, Esq., Scott P. Benjamin, Esq., Steven R Sundheim Associates, LLC, White Plains, NY, for Defendant Fairview Majestic Fireplace, Corp.
OPINION AND ORDER
Colby Rae Santoro brings this diversity action against her father Lewis Donnelly, Fairview Majestic Fireplace Corp. ("Fairview"), and The Vermont Casting Majestic Products Co. ("Vermont Casting"). She alleges causes of action for negligence and product liability arising from the December 2001 accident in which she sustained injuries resulting form touching the glass surface of a fireplace in Donnelly's home. Donnelly now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, Donnelly's motion is granted in part and denied in part.
The Amended Complaint lists six "counts," three of which relate to defendant Donnelly. Counts One and Two present causes of action sounding in negligence. count Six purports to be a claim by Diana Santoro, Colby's mother, against Donnelly. See Amended Complaint ("Am. Compl.") ¶¶ 29-38, 60-62. However, Diana Santoro does not appear to be a named plaintiff in this lawsuit and therefore cannot assert a claim against any of the defendants. The Court notified plaintiff's counsel, Ms. Reiss, of this problem, but as of the date of this Opinion, she has not remedied it. Moreover, the parties did not brief the issue of whether summary judgment should be granted as to Diana Santoro's claim against Donnelly, and I do not address it.
I. BACKGROUND
A. The Parties
Colby Rae Santoro is a three-year-old child bringing this action by and through her natural mother and Guardian ad Litem, Diana Santoro. Colby is a New Jersey resident. Lewis Donnelly, a New York citizen, is Colby's natural father. He owns a construction company called Ashmar Development, which builds single-family homes. Fairview is a corporation organized under the laws of New York, which distributes and installs gas fireplaces. Vermont Castings is a manufacturer of gas fireplaces conducting business in New York.
Id. ¶ 1; Defendant Donnelly's Rule 56.1 Statement ("Def. 56.1 Stmt.") ¶ 1.
Am. Compl. ¶ 1.
Id. ¶ 2; Def. 56.1 Stmt. ¶ 2; Plaintiff's Rule 56.1 Statement ("Pl. 56.1 Stmt.") ¶ 2.
Am. Compl. ¶¶ F, 3.
Id. ¶¶ D, 4.
B. Procedural History
In her original complaint, Colby named only Donnelly as a defendant. On December 26, 2002, Donnelly filed a third-party complaint against Fairview and Vermont Castings. Colby then amended her complaint in April 2003, naming Donnelly, Fairview, and Vermont Castings as defendants. Following a pre-motion conference before this Court on October 14, 2003, Donnelly brought the instant motion, seeking summary judgment.
See Third Party Complaint.
See Am. Compl.
C. Facts
1. The Accident
On December 22, 2001, Colby, then one year old, sustained burns on her hands, forearm, and forehead after touching the glass cover of a gas fireplace in the living room of her father's New York residence. The incident occurred during Colby's first visit to Donnelly's new house. On the day of the accident, Donnelly was supervising Colby, as well as two eleven-year-old girls — his daughter Ashley Donnelly and her friend Brooke Sackaris. As he was unpacking groceries in the kitchen, Ashley asked him for permission to turn on the gas fireplace in the living room. Donnelly consented and told her where the switch was located (next to the fireplace) and how to light the fireplace (by flipping the switch). Within approximately ten minutes, Donnelly, who was still in the kitchen unpacking groceries, became aware of the fact that Colby had stumbled into the heated glass surface of the fireplace.
See Def. 56.1 Stmt. ¶¶ 3-4, 10-11; Pl. 56.1 Stmt. ¶¶ 3-4, 8-9; 6/30/03 Deposition of Plaintiff's Mother Diana Santoro ("Santoro Dep."), Ex. C to 11/11/03 Declaration of Donnelly's Attorney Craig Lamster in Support of Donnelly's Motion for Summary Judgment ("Lamster Decl."), at 20.
Donnelly had moved into the house one or two days before the accident. See Deposition of Defendant Donnelly ("Donnelly Dep."), Ex. D to Lamster Decl., at 106. The deposition of Donnelly took place over two days June 30, 2003 (pages 1-95) and August 25, 2003.
See id. at 45-46, 180.
See id. at 55. Although the living room and kitchen are adjacent, at the time of the accident, Donnelly was unable to see the fireplace or the children from where he was unpacking the groceries. See id.; see also id. at 172 (noting that he did not witness Colby's accident).
See id. at 155-56, 170; Def. 56.1 Stmt. ¶ 7. The switch resembles a common wall switch. See Donnelly Dep. at 158.
Donnelly may or may not have instructed Ashley and Brooke to look after Colby. See Donnelly Dep. at 41 (noting that he told either or both of them to "[k]eep an eye on Colby"); id. at 169 ("No, I didn't ask [Ashley] to watch her.")-When the accident occurred, Donnelly was not watching any of the children, but was "about 20 feet" away. See id.
See id. at 56, 172-73, 177; see also Def. 56.1 Stmt. ¶ 10; Pl. 56.1 Stmt. ¶ 8.
2. The Fireplace
Two Vermont Castings gas fireplaces were placed in Donnelly's home at approximately the same time — one in his living room and one in his bedroom. Donnelly alleges that when the fireplaces were installed, Fairview, the distributor/installer, neither provided him with operating instructions nor verbally instructed him as to how the fireplaces should be operated. Prior to the accident, Donnelly had briefly tested, but never used, the fireplaces and was unaware that the glass surface could reach temperatures of up to 435 degrees Fahrenheit.
According to Donnelly, the first fireplace was provided to him free of charge. This fireplace was installed in the upstairs bedroom. He purchased a second fireplace for the living room. See Donnelly Dep. at 150-53.
See id. at 27, 155.
See Pl. 56.1 Start, ¶ 6 (noting that the temperature can rise to 432 degrees); Donnelly Dep. at 51-52 (stating that he did not know the fireplace reached that temperature).
Although Donnelly may never have received it, Vermont Castings has a manual that contains installation and homeowner instructions directing the proper use of its fireplaces. This manual contains a warning that specifically states: "Children and adults should be alerted to the hazards of the high surface temperatures of this fireplace and should stay away to avoid burns or ignition of clothing. Caution, due to high glass surface temperature children should be carefully supervised when they are in the same room as the fireplace. "
Vermont Castings' Installation Instructions Homeowner's Manual, Ex. A to 12/2/03 Affirmation of Jon D. Lichtenstein, counsel for Vermont Castings, in Opposition to Donnelly's Motion for Summary Judgment, at 3.
II. APPLICABLE LAW
A. Summary Judgment Standard
Summary judgment is permissible "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'" A fact is material when "it `might affect the outcome of the suit under the governing law.'"
Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)).
Id. at 682 (quoting Anderson, 477 U.S. at 248).
The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it `"must do more than simply show that there is some metaphysical doubt as to the material facts,'" and it "`may not rely on conclusory allegations or unsubstantiated speculation.'" Rather, the non-moving party must produce admissible evidence that supports its pleadings. In this regard, "[t]he `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment."
See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)).
Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2002) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d cir. 1998)); see also Gayle, 313 F.3d at 682.
See First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968).
Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252).
In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor. Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party."
See Niagara Mohawk, 315 F.3d at 175.
Anderson, 477 U.S. at 249.
Marvel, 310 F.3d at 286 (citing Pinto v. Allstate Inc., 221 F.3d 394, 398 (2d Cir. 2000)).
B. Negligence
Although there is no intrafamily immunity for nonwillful torts under New York law, "a parent's negligent failure to supervise a child is generally held not to constitute a tort actionable by the child." The foundation for the "negligent supervision" exception is concern for the "inevitable `strain on the family relationship'" — the notion that `"[t]he mutual obligations of the parent-child relation derive their strength and vitality from such forces as natural instinct, love and morality, and not from the essentially negative compulsions of the law's directives and sanctions.'" Thus, recovery by infant plaintiffs from their parents has been disallowed where the basis for liability was the parent's failure to prevent his/her child from falling from a slide on the playground, being struck by a lawnmower operated by another child, sustaining burns from scalding bath water or boiling fat left unattended in a deep fryer, or falling from a window left open by the parent.
See Gelbman v. Gelbman, 23 N.Y.2d 434, 439 (1969) (abrogating the defense of intrafamily immunity for nonwillful torts).
La Torre v. Genesee Mgmt., 90 N.Y.2d 576, 579 (1997); see also, e.g., Holodook v. Spencer, 36 N.Y.2d 35, 51 (1975) (articulating the exception to the rule for negligent supervision), Nolechek v. Gesuale, 46 N.Y.2d 332, 343 (1978); Semmens v. Hopper, 513 N.Y.S.2d 472, 473 (2d Dep't 1987); Ruffing v. Union Carbide Corp., 720 N.Y.S.2d 328, 332 (Sup.Ct. Westchester Co. 2000).
La Torre, 90 N.Y.2d at 580-81 (quoting Holodook, 36 N.Y.2d at 47, 50).
See Holodook, 36 N.Y.2d at 41-42. Holodook involved three individual actions, two of which are described in the text accompanying this note. The third action involved a child who darted between parked cars and was struck by defendant's car. Defendant then filed an independent action for contribution from the child's mother. The court denied defendant's contribution claim against the mother, finding that to permit recovery would contravene important policies of promoting family harmony. See id. at 48.
See Deshler v. East W. Renovators, Inc., 712 N.Y.S.2d 518, 519 (1st Dep't 2000); Zikely v. Zikely, 470 N.Y.S.2d 33, 35 (2d Dep't 1983), aff'd, 62 N.Y.2d 907 (1984).
See Wilson v. Sears, Roebuck Co., 511 N.Y.S.2d 726, 727 (4th Dep't 1987).
See McNamara v. Banney, 672 N.Y.S.2d 569, 570 (4th Dep't 1998).
The Court of Appeals has also recognized a "very specific and narrow complement" to the principle of negligent supervision, imposing liability on parents who have entrusted their infant child with a dangerous instrument. In other words, "parents owe 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." Whether a particular instrument is dangerous depends on the "`nature, complexity, and size of the instrument as well as the age and proficiency of the infant [using] it.' Such a determination may, where the record is sufficiently developed, be made as a matter of law." Moreover "items that are commonly used by children, of suitable age in a manner consistent with their intended use, may not, as a matter of law, be classified as dangerous instruments."
La Torre, 90 N.Y.2d at 581-82 (citing Nolochek, 46 N.Y.2d at 341-42, where the court found a motorcycle to be a dangerous instrument); see also 45 N.Y.Jur.2d Dom.ReL 534.
Rios v. Smith, 95 N.Y.2d 647, 653 (2001) (affirming jury finding that father created an unreasonable risk of harm to minor plaintiff by negligently entrusting all-terrain vehicle to his son); see also Sorto v. Flores, 660 N.Y.S.2d 60, 61 (2d Dep't 1997). For example, see Nolechek, 46 N.Y.2d at 341-42 (finding that defendant property owners had a viable counterclaim against father who provided a motorcycle to his sixteen-year-old son, who was blind in one eye and vision-impaired in the other, on a theory of negligent entrustment of a dangerous instrument). A child may also recover on his own behalf. See Acquaviva v. Piazzolla, 472 N.Y.S.2d 704, 706 (2d Dep't 1984) (finding that child had a viable claim against parents who allowed his three-year-old older brother access to the family car, thereby enabling brother to disengage the emergency brake and roll over and injure infant plaintiff).
Simcha v. Simcha, 741 N.Y.S.2d 245, 246 (2d Dep't 2002) (quoting Sorto, 660 N.Y.S.2d at 61).
Rios, 95 N.Y.2d at 653 (emphasis added). For examples of items found not to constitute dangerous instruments as a matter of law, albeit under varying circumstances, see Sorto, 660 N.Y.S.2d at 61 (bicycle); Barocas v. F. W. Woolworth Co., 622 N.Y.S.2d 5 (1st Dep't 1995) (plastic doll); Parsons v. Wham-O, 541 N.Y.S.2d 44 (2d Dep't 1989) (waterslide); Schwartz v. Licht, 570 N.Y.S.2d 83 (2d Dep't 1991) (tennis ball); Young v. Dalidowicz, 460 N.Y.S.2d 82 (2d Dep't 1983) (skateboard); and Pietrzak v. McGrath, 445 N.Y.S.2d 827 (2d Dep't 1981) (seesaw).
Notably, neither the principle of negligent supervision, nor the dangerous instrument exception, precludes recovery by a child from a parent under a theory of ordinary negligence. Where "a parent `breaches a duty owed to the world at large,'" i.e., a duty that exists apart from a family relationship, that parent's negligence gives rise to a viable cause of action in favor of the infant, against the parent. Accordingly, a court must evaluate the nature of the duty owed by the parent in determining whether a parent's actions constitute "negligent supervision" or ordinary negligence.
See, e.g., Barocas, 622 N.Y.S.2d at 7.
Ruffing, 720 N.Y.S.2d at 332; see also Hoppe v. Hoppe, 724 N.Y.S.2d 65, 66 (2d Dep't 2001); Cantave v. Peterson, 698 N.Y.S.2d 721, 722 (2d Dep't 1999); Semmens, 513 N.Y.S.2d at 473; Hurst v. Titus, 432 N.Y.S.2d 938, 939 (4th Dep't 1980).
See, e.g., Hoppe, 724 N.Y.S.2d at 66 (permitting suit by infant plaintiff against his father premised on plaintiffs injuries when he struck an explosive nail gun cartridge with a hammer entrusted to him by his father); Cantave, 698 N.Y.S.2d at 722 (allowing counterclaims against mother in suit alleging lead-poisoning of her children on the basis of her having painted the apartment herself and having failed to promptly seek medical attention for children); Semmens, 513 N.Y.S.2d at 473 (finding that child could recover from parent based upon a breach of the duty to exercise reasonable care as to the accessibility of a swimming pool); Hurst, 432 N.Y.S.2d at 939 (allowing child to bring a claim against mother for negligently starting the fire in which child was injured); Goedkoop v. Ward Pavement Corp., 378 N.Y.S.2d 417, 418 (2d Dep't 1976) (permitting child injured by a blasting cap found in the basement of child's home to sue father for negligently storing explosives).
III. DISCUSSION
A. Negligent Entrustment of a Dangerous Instrument
Donnelly argues that he is not liable under a theory of negligent entrustment because he did not "entrust" a dangerous instrument to Ashley and she was not improvident in her use of the allegedly dangerous instrument — the gas fireplace. Colby counters that "the determination of whether the fireplace . . . was `entrusted' to anyone in the room, whether it is a dangerous instrument and whether or not Mr. Donnelly was aware of and capable of controlling the instruments [ sic] use are inherently factual in nature and are questions for the trier of fact." But such determinations are routinely made as a matter of law, where the record is sufficiently developed. The record in this case fails to support Colby's theory that Donnelly "entrusted" the fireplace to Ashley. He authorized her to flip a switch, which is easily distinguishable from allowing a child access to a car or a motorcycle, To permit plaintiff to recover on a theory of negligent entrustment where defendant parent merely permitted his child to flip a switch would distort a traditionally narrow exception to the negligent supervision principle. Such an extension is not warranted either by existing case law or the facts of this case. Accordingly, summary judgment is granted as to Colby's claim of negligent entrustment of a dangerous instrument.
See Memorandum of Law in Support of Donnelly's Motion for Summary Judgment at 1-2. As an initial matter, I note that I advised the parties at a pre-motion conference that the circumstances of this case would not support an entrustment claim. See Tr. at 8-9. However, as both parties have apparently decided to overlook that guidance, I will address the entrustment argument for the second time.
See Memorandum of Law in Opposition to Donnelly's Motion for Summary Judgment at 7.
See, e.g., supra notes 39-40 (citing cases).
See, e.g., Nolechek, 46 N.Y.2d at 341-42; Acquaviva, 472 N.Y.S.2d at 706.
B. Negligence
Donnelly argues that he did not breach a duty of care owed to "the world at large" by permitting his daughter Ashley to ignite the fireplace. Rather, he contends that his role in the events leading to Colby's injuries "can be nothing more than negligent supervision." But the duty of care that Donnelly violated was owed regardless of his relationship to Colby. As the homeowner's manual warns, when used improperly, the gas fireplace poses risks of injury due to its emission of dangerously high heat. Accordingly, Donnelly's obligation to exercise reasonable care in the maintenance and operation of this dangerous fixture was a duty owed to all.
See Memorandum of Law in Further Support of Donnelly's Motion for Summary Judgment at 2.
See id. at 5.
See Vermont Castings' Installation Instructions Homeowner's Manual at 3.
The finding that Donnelly's duty exists apart from his parental relationship with Colby is supported by New York precedents permitting actions by children against their parents where plaintiffs' injuries resulted from: (1) the mother's decision to leave a running electric lawnmower unattended in the family yard and (2) the parents' failure to restrict accessibility to their swimming pool. Moreover, the facts of this case clearly distinguish it from New York cases barring recovery by a child against a parent where the parents' negligent acts could only constitute negligent supervision. Those cases typically involve situations where, for instance, the parent fails to watch her child and the child falls from a slide, gets hit by a car, or slips into a bath of scalding water. But here, the negligent act was not merely Donnelly's failure to prevent Colby from stumbling into the glass surface of the fireplace — it was his alleged failure to exercise due care in operating and maintaining the fireplace. Thus, the record suggests that Donnelly may have been negligent in his supervision of Colby and may also have breached a duty of care owed to the world by negligently operating and maintaining the gas fireplace. Donnelly further submits that because he did not turn on the fireplace himself, he cannot be liable for Colby's injuries as a matter of law. This argument lacks merit for at least two reasons. First, Donnelly specifically authorized Ashley to flip the switch, turning on the gas fireplace. Second, his alleged negligence arises from his failure to limit access to the fireplace, as well as his failure to exercise due care in its operation. Thus, a factfinder could conclude that a reasonable person would have known that a gas fireplace with an exposed glass surface would pose the threat of injury and would have erected a guard or barrier barring open access to the fireplace. A factfinder could also determine that Donnelly did exercise due care in his maintenance and use of the fireplace. But it cannot be stated as a matter of law at this stage in the proceedings that Donnelly was not negligent in his maintenance and operation of the gas fireplace. Moreover, a question of fact exists as to whether negligent supervision or the breach of a duty to exercise reasonable care in the operation of the gas fireplace was the proximate cause of Colby's injuries. IV. CONCLUSION
See Thurel v. Varghese, 621 N.Y.S.2d 633, 634-35 (2d Dep't 1995) (citing Grivas v. Grivas, 496 N.Y.S.2d 757 (2d Dep't 1985) and Semmens, 513 N.Y.S.2d at 473, respectively).
See, e.g., Holodook, 36 N.Y.2d at 41-42; Deshler, 712 N.Y.S.2d at 519; Zikely, 470 N.Y.S.2d at 35; Wilson, 511 N.Y.S.2d at 727; McNamara, 672 N.Y.S.2d at 570.
New York courts have consistently found that where a child is injured under circumstances involving both negligent supervision and ordinary negligence, a question of fact exists as to the proximate cause of the infant's injuries. See, e.g., Grivas, 496 N.Y.S.2d at 761 ("[A] question of fact exists as to whether negligent supervision or the breach of a duty to exercise reasonable care in the operation of a lawn mower, a duty owed apart from the family relationship, was the proximate cause of the infant plaintiffs injuries. The determination as to the proximate cause or causes of the infant's injuries must await the trial of the action."); Semmens, 513 N.Y.S.2d at 473 ("[A] question of fact exists as to whether the breach of a duty to exercise reasonable care with respect to the accessibility to a swimming pool, a duty owed separate and apart from the family relationship, was the proximate cause of the infant plaintiffs injuries."); Hurst, 412 N.Y.S.2d at 940 ("[T]he facts alleged establish that defendant negligently started a fire and allowed it to spread, injuring plaintiff. A jury could readily find that the fire was a substantial and proximate cause of the injuries and, if so, then defendant is liable. The determination as to the proximate cause or causes of the infant's injuries must await the trial of the action."); Goedkoop, 378 N.Y.S.2d at 419 ("[A] determination as to what was the proximate cause of the infant's injuries [ i.e., parent's negligent storage of blasting caps and/or failure to properly supervise child] must await a trial of the action.").
For the reasons set forth above, Donnelly's motion for summary judgment is granted in part and denied in part. Donnelly's motion is granted with respect to Colby's claim of negligent entrustment of a dangerous instrument and denied as to Colby's allegations that Donnelly failed to exercise due care in his operation and maintenance of the gas fireplace. The Clerk of the Court is directed to close this motion [number 29 on the docket sheet].
SO ORDERED.