As the Rios Court explained, “[w]hether a particular object qualifies as a dangerous instrument depends on the nature of the instrument and the facts pertaining to its use, including the particular attributes of the minor using or operating the item” (95 N.Y.2d at 653, citing 45 N.Y. Jur 2d, Domestic Relations § 534, *874Craft v. Mid Is. Dept. Stores, 112 A.D.2d 969, 970, 492 N.Y.S.2d 780 [2d Dept. 1985], and Alessi v. Alessi, 103 A.D.2d 1023, 1024, 478 N.Y.S.2d 396 [4th Dept. 1984] ). There is no question that “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” ( Rios, 95 N.Y. & 2d at 653, citing Sorto v. Flores, 241 A.D.2d 446, 447, 660 N.Y.S.2d 60 [2d Dept. 1997],Barocas v. F.W. Woolworth Co., 207 A.D.2d 145, 148, 622 N.Y.S.2d 5 [1st Dept. 1995], and Santalucia v. County of Broome, 205 A.D.2d 969, 970–971, 613 N.Y.S.2d 774 [3d Dept. 1994],lv. dismissed84 N.Y.2d 923, 621 N.Y.S.2d 521, 645 N.E.2d 1221 [1994] ). However, the cases in which claims of negligent entrustment have been dismissed all concern playthings or items associated with child rearing.
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.
Thus defendant relies exclusively on the third ground for a defense to plaintiff's negligent entrustment claim. The owner of dangerous equipment has the duty to entrust it to a person whose use will not create an unreasonable risk of harm to other persons ( Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 236; Myers v 149 Automotive, 295 AD2d 104, 105 [1st Dept 2002]; Guay v Winner, 189 AD2d 1081, 1083 [3d Dept 1993]; Splawnik v Di Caprio, 146 AD2d 333, 335-336 [3d Dept 1989]; see Barocas v F.W. Woolworth Co., 207 AD2d 145, 148 [1st Dept 1995]). Thus defendant must establish that it lacked knowledge or reason to know that Ochoa's use of the excavator was unreasonably hazardous ( Hamilton v Beretta U.S.A. Corp., 96 NY2d at 237; Myers v 149 Automotive, 295 AD2d at 105; Splawnik v Di Caprio, 146 AD2d at 335), due to deficiencies either in his training, experience, or conduct or in the excavator's operation ( Rios v Smith, 95 NY2d 647, 653; Troncoso v Home Depot, 258 AD2d 644, 645 [2d Dept 1999]; Guay v Winner, 189 AD2d at 1083; Zara v Perzan, 185 AD2d 236, 237 [2d Dept 1992]; see Barocas v F.W. Woolworth Co., 207 AD2d at 148).
Whether a particular object qualifies as a dangerous instrument depends on the nature of the instrument and the facts pertaining to its use, including the particular attributes of the minor using or operating the item (see, 45 N.Y. Jur 2d, Domestic Relations, § 534; see also, Craft v Mid Is. Dept. Stores, 112 A.D.2d 969, 970; Alessi v. Alessi, 103 A.D.2d 1023, 1024). While this is often a fact-based determination, 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 (see, Sorto v. Flores, 241 A.D.2d 446, 447; Barocas v. F.W. Woolworth Co., 207 A.D.2d 145, 148; Santalucia v. County of Broome, 205 A.D.2d 969, 970-971, lv dismissed 84 N.Y.2d 923). Under the particular facts and circumstances presented here, however, the issue of whether the ATV was a dangerous instrument was a question of fact properly submitted for jury determination. The record revealed that Persico estimated that the ATVs could attain speeds of 20 to 30 miles per hour and a passenger would ride the vehicle by holding onto the driver.
We affirm. The gravamen of the counterclaim is negligent parental supervision of a child, which is not actionable ( see, Holodook v Spencer, 36 N.Y.2d 35, 48; Hlavinka v Slovak Sky Bungalow Colony, 203 A.D.2d 855). Defendants' contrary view notwithstanding, a breach of no duty, apart from that stemming from the family relationship, has been alleged ( see, Barocas v Woolworth Co., 207 A.D.2d 145; Walden v Rensselaer Polytechnic Inst., 116 A.D.2d 963). Cardona, P.J., White, Casey and Spain, JJ., concur.
Appeal from the Supreme Court, Bronx County (Anne Targum, J.). In the absence of evidence that the parents had a duty with respect to the painting of their rented apartment ( see, Multiple Dwelling Law § 78; Administrative Code of City of N Y § 27-2013 [h]) or otherwise affirmatively created the condition giving rise to the injury ( see, Barocas v. Woolworth Co., 207 A.D.2d 145, 149), the allegations of the proposed counterclaims are insufficient to overcome the rule prohibiting claims based on negligent parental supervision ( Holodook v. Spencer, 36 N.Y.2d 35; compare, Alharb v. Sayegh, 199 A.D.2d 229). Concur — Sullivan, J.P., Rosenberger, Asch and Nardelli, JJ.
Excluding the issue of Graham's negligence in the main action on her child's behalf, however, does not affect Jeffmar Management's second third-party action, which seeks indemnification from Graham based on conduct by her that is actionable independent of the parent-child relationship. Barocas v. F.W. Woolworth Co., 207 AD2d 145, 149 (1st Dep't 1995); Young v. Greenberg, 181 AD2d 492 (1st Dep't 1992); Hoppe v. Hoppe, 281 AD2d 595, 596 (2nd Dep't 2001); Alharb v. Sayegh, 199 AD2d 229, 230 (2nd Dep't 1993). In the second third-party action, in contrast to here in the main action, Graham is collaterally estopped from relitigating her own negligence.