Opinion
329 CA 18–01476
08-22-2019
Paul M. BAVISOTTO, Plaintiff–Appellant, v. Michael DOLDAN, Individually and as Parent of Sarah Doldan, Sarah Doldan, Defendants–Respondents, and Meghan Gray, Defendant.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this action against Michael Doldan, individually and as parent of Sarah Doldan, and Sarah Doldan (collectively, defendants), as well as Meghan Gray, seeking damages for injuries he sustained at defendants' home when Gray poured kerosene onto a fire in a fire pit, spraying plaintiff in the process and causing him to catch fire. Defendants moved for, inter alia, summary judgment dismissing the complaint against them on the ground that the sole proximate cause of plaintiff's injuries was Gray's act of pouring kerosene onto the active fire. Supreme Court granted defendants' motion, and we affirm.
We conclude that defendants met their burden to "make a prima facie showing of entitlement to judgment as a matter of law, [by] tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). Defendants' submissions in support of their motion established that Gray owned the can of kerosene and brought it to defendants' property some time prior to the date of the incident for the purpose of soaking wicks for use in the art of fire spinning. On the night of the incident, despite her experience with using kerosene as an accelerant, Gray retrieved the kerosene from defendants' yard and poured it into the active fire pit. We conclude that "the record eliminates any legal cause other than the reckless conduct of [Gray,] who by virtue of [her] general knowledge of [the injury-causing instrument], [her] observations prior to the accident, and plain common sense ... must have known that [her actions] posed a danger of injury" ( Howard v. Poseidon Pools, 72 N.Y.2d 972, 974–975, 534 N.Y.S.2d 360, 530 N.E.2d 1280 [1988] [internal quotation marks omitted]; see Steir v. London Guar. & Acc. Co., Ltd., 227 App.Div. 37, 38–39, 237 N.Y.S. 40 [1st Dept. 1929], affd 254 N.Y. 576, 173 N.E. 873 [1930] ). Where "only one conclusion may be drawn from the established facts ... the question of legal cause may be decided as a matter of law" ( Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980], rearg. denied 52 N.Y.2d 784, 436 N.Y.S.2d 622, 417 N.E.2d 1010 [1980] ). Having merely furnished the occasion for the occurrence of the incident, defendants did not cause plaintiff's injury and may not be held liable (see Riccio v. Kid Fit, Inc., 126 A.D.3d 873, 874, 5 N.Y.S.3d 521 [2d Dept. 2015] ).
Although plaintiff correctly contends that defendants owed him a duty of care as a guest on their property (see Comeau v. Lucas, 90 A.D.2d 674, 675, 455 N.Y.S.2d 871 [4th Dept. 1982] ), defendants' submissions establish that they did not breach their duty to "act as ... reasonable [persons] in maintaining [the] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" ( Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976] [internal quotation marks omitted] ). All attendees of the gathering at defendants' property on the night of the incident were adults, and it was not unreasonable for defendants to allow the small group of adults to use the premises for an unsupervised gathering around a fire pit.
We respectfully disagree with the view of our dissenting colleague that defendants' own submissions contained conflicting deposition testimony with respect to whether Sarah Doldan breached a duty to control the conduct of Gray. We reject the view of the dissent that Sarah Doldan's deposition testimony that she warned Gray not to use the kerosene and told Gray to give her the can of kerosene conflicted with Gray's deposition testimony that she did not recall a warning not to use the kerosene. Gray repeatedly testified during her deposition that she did not recall a warning, which is not the same as testimony that no such warning was uttered. Inasmuch as that distinction was not initially clear from her testimony, Gray was specifically asked to clarify whether she meant that she did not recall a warning or that Sarah Doldan did not warn her not to use the kerosene. Gray maintained that she did not recall Sarah Doldan warning her not to use the kerosene. Even viewing this testimony in the light most favorable to plaintiff and giving him the benefit of every favorable inference (see Esposito v. Wright, 28 A.D.3d 1142, 1143, 814 N.Y.S.2d 430 [4th Dept. 2006] ), Gray's testimony about her inability to recall the happening of an event is not affirmative proof that the event did not happen. Gray's testimony that she did not recall Sarah Doldan's warning was thus insufficient to create an issue of fact (see e.g. Cortese v. Pobejimov, 136 A.D.3d 635, 636, 24 N.Y.S.3d 405 [2d Dept. 2016] ; Lombardo v. Tag Ct. Sq., LLC, 126 A.D.3d 949, 951, 7 N.Y.S.3d 187 [2d Dept. 2015] ; Sandu v. Sandu, 94 A.D.3d 1545, 1546, 942 N.Y.S.2d 914 [4th Dept. 2012] ).
Furthermore, the mere presence of kerosene on the premises did not render the premises unsafe or present a known dangerous condition. Plaintiff does not allege that the kerosene was stored so close to the fire pit as to present a foreseeable danger of contact between the fire and the accelerant, and the deposition testimony submitted by defendants in support of their motion established that the can of kerosene was "pretty far away from the fire." Inasmuch as kerosene has legitimate household uses and the likelihood of it causing injury to a guest was low, given the age of the guests and the fact that the fire pit had been used by members of the group many times before Gray brought the kerosene to the property for use in connection with fire spinning (see Steir, 227 App.Div. at 39, 237 N.Y.S. 40 ), we conclude that the mere presence of the kerosene did not render the premises unsafe or warrant such concern that defendants were required to see to its disposal. We further conclude that the issue whether defendants asked Gray to remove the can of kerosene from their property prior to the incident is immaterial.
Even assuming, arguendo, that defendants were negligent in allowing the kerosene to remain on their property, we conclude that the mere presence of the kerosene was insufficient to make them "reasonably aware of the need" to control Gray's actions ( D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896 [1987] ). Although Gray was knowledgeable about the nature of kerosene and had experience using it, she created the dangerous condition when she committed the unforeseeable superseding act of pouring the kerosene onto an open flame (see Boltax v. Joy Day Camp, 67 N.Y.2d 617, 619–620, 499 N.Y.S.2d 660, 490 N.E.2d 527 [1986] ; Jones v. City of New York, 10 A.D.3d 411, 411–412, 781 N.Y.S.2d 147 [2d Dept. 2004], lv denied 4 N.Y.3d 706, 795 N.Y.S.2d 167, 828 N.E.2d 83 [2005] ), thereby severing any causal nexus between defendants' purported negligence and plaintiff's injuries (cf. Derdiarian, 51 N.Y.2d at 315–316, 434 N.Y.S.2d 166, 414 N.E.2d 666 ).
In opposition to defendants' showing, plaintiff failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
All concur except Peradotto, J., who dissents in part and votes to modify in accordance with the following memorandum: I respectfully dissent in part because, in my view, Michael Doldan, individually and as parent of Sarah Doldan, and Sarah Doldan (defendants) failed to establish as a matter of law on their motion for, inter alia, summary judgment dismissing the complaint against them that Sarah Doldan did not breach a duty to control the conduct of defendant Meghan Gray. I would therefore modify the order on the law by denying in part the motion of defendants and reinstating the complaint against Sarah Doldan.
It is well established that landowners and those in control or possession of the premises "have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control" ( D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896 [1987] ; see Dynas v. Nagowski, 307 A.D.2d 144, 146, 147, 762 N.Y.S.2d 745 [4th Dept. 2003] ). Here, I conclude that defendants' own papers contain conflicting deposition testimony of Sarah Doldan and Gray regarding whether Sarah Doldan had the opportunity to prevent Gray from pouring kerosene on the fire and whether she attempted to do so by warning Gray against such conduct (see Struebel v. Fladd, 75 A.D.3d 1164, 1165, 905 N.Y.S.2d 732 [4th Dept. 2010] ; Lasek v. Miller, 306 A.D.2d 835, 835–836, 762 N.Y.S.2d 204 [4th Dept. 2003] ; Fantuzzo v. Attridge, 291 A.D.2d 871, 872, 737 N.Y.S.2d 192 [4th Dept. 2002] ). Contrary to the majority's assertion, when viewed in context and in the light most favorable to plaintiff while giving him the benefit of every reasonable inference (see Esposito v. Wright, 28 A.D.3d 1142, 1143, 814 N.Y.S.2d 430 [4th Dept. 2006] ), Gray's testimony was that she did not recall anyone, including Sarah Doldan, warning her against pouring kerosene on the fire because no such warning was uttered. Gray's testimony in this regard did not, as the majority asserts, convey an "inability to recall the happening of an event." Rather, Gray's testimony, when properly viewed, conflicts with Sarah Doldan's testimony that she told Gray not to use the kerosene and instructed her to hand it over. In addition, inasmuch as Gray did not act spontaneously and instead mentioned putting kerosene on the fire and then retrieved it from a distance "pretty far away from [the] fire" before returning thereto and inasmuch as Sarah Doldan was admittedly aware of such conduct, I conclude that there is an issue of fact whether Sarah Doldan could have "reasonably anticipated or prevented" Gray's conduct ( Kramer v. Arbore, 309 A.D.2d 1208, 1209, 765 N.Y.S.2d 118 [4th Dept. 2003] ; cf. Hillen v. Queens Long Is. Med. Group, P.C., 57 A.D.3d 946, 947, 871 N.Y.S.2d 302 [2d Dept. 2008] ; see also Lasek, 306 A.D.2d at 835–836, 762 N.Y.S.2d 204 ).