Passe v. Holiday Inns, Inc.

248 A.D.2d 982, 670 N.Y.S.2d 272, 1998 N.Y. App. Div. LEXIS 3037

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 1998
• Status: Published

Opinion

—Order insofar as appealed from unanimously reversed on the law with costs, motion denied and third, fourth and fifth causes of action reinstated. Memorandum: Supreme Court erred in concluding as a matter of law that the hard rubber “super ball” thrown by eight-year-old defendant Casey Murphy was not a dangerous instrument and that therefore defendant James Murphy, Casey’s father, could not be held liable for negligence. Although a parent generally is not liable for the negligent supervision of his child (see, Holodook v Spencer, 36 NY2d 35; Santalucia v County of Broome, 205 AD2d 969, 970, Iv dismissed 84 NY2d 923), there is an exception to that rule. A parent owes a duty to shield third parties from a child’s improvident use of a dangerous instrument, especially when the parent is aware of and capable of controlling its use (Nolechek v Gesuale, 46 NY2d 332, 338; Kelchner v John Deere Co., 149 AD2d 911, 912, Iv dismissed in part and denied in part 74 NY2d 890; Alessi v Alessi, 103 AD2d 1023).

Plaintiff submitted an expert’s affidavit stating that the “super ball” is approximately 3.4 times as dangerous as a tennis ball, and the record establishes that such a hard rubber ball can cause a serious injury when it strikes the eye of an unsuspecting person enjoying the use of a swimming pool. We conclude that there is a triable issue of fact whether the “super ball” is a dangerous instrument based upon its size, weight and hardness and the manner in which it was used. (Appeal from Order of Supreme Court, Monroe County, Lunn, J. — Summary Judgment.)

Present — Denman, P. J., Green, Pine, Callahan and Fallon, JJ.