Comeau v. Lucas

• Decision Date: 29 October 1982
• Docket Number: No. 1,1
• Citation: Comeau v. Lucas, 90 A.D.2d 674, 455 N.Y.S.2d 871 (N.Y. App. Div. 1982)
• Parties: George COMEAU, Respondent-Appellant, v. Mr. and Mrs. Frank LUCAS and Lori Lucas, a/k/a Lorraine Lucas, Respondents, and Michael Ruggero, Appellant-Respondent. Appeal
• Court: New York Supreme Court — Appellate Division

Page 871

455 N.Y.S.2d 871

90 A.D.2d 674

George COMEAU, Respondent-Appellant, v.Mr. and Mrs. Frank LUCAS and Lori Lucas, a/k/a Lorraine Lucas, Respondents and Michael Ruggero, Appellant-Respondent. Appeal No. 1.

Supreme Court, Appellate Division Fourth Department.

Oct. 29, 1982.

Bernstein, White & Bernstein by Richard A. Bernstein, Rochester, for appellant-respondent.

Edwin Robert Schulman, Rochester, for respondent-appellant.

Winchell, Connors & Corcoran, by Charles A. Hall, Rochester, for respondents Lucas.

Before SIMONS, J.P., and HANCOCK, CALLAHAN, DENMAN and BOOMER, JJ.

MEMORANDUM:

PlaintiffGeorge Comeau sustained a serious head injury as the result of an intentional assault by defendantMichael Ruggero, a member of a rock band, who was apparently in an intoxicated condition while playing at a party held in the home of defendants Mr. and Mrs. Frank Lucas.In his action to recover damages, plaintiff alleged negligence on the part of Mr. and Mrs. Lucas for failure to supervise a party given by their 16 year old daughter Lori while they were out of the country, but for which they had given their consent, despite knowing that beer would be served; that a rock band was engaged; and that many of the guests would be under 18 years of age.Plaintiff further alleged that Lori was individually liable as the agent of her parents for negligence in failing properly to supervise the party in her parents' absence.At the close of plaintiff's proof, the court granted summary judgment dismissing the complaint against the Lucases, but held that Ruggero was liable for injuries inflicted on plaintiff as a matter of law.The jury awarded plaintiff $250,000 compensatory damages and $30,000 punitive damages less a 10% reduction based on plaintiff's culpable conduct in drinking and engaging in disruptive behavior.

Plaintiff appeals from the trial court's order dismissing his complaint against Mr. and Mrs. Lucas and Lori Lucas; from denial of his motion to amend his pleadings to conform to the proof (CPLR 3025, subd. ); and to that portion of the court's charge which advised that the jury could reduce the amount of damages in proportion to the culpable conduct attributed to the plaintiff(CPLR Article 14-A).Defendant Ruggero appeals on the grounds that the verdict is excessive.

The court erred in dismissing plaintiff's causes of action for negligence against Mr. and Mrs. Lucas.As recently stated in Huyler v. Rose, 88 A.D.2d 755, 451 N.Y.S.2d 478:

"A property owner ... has the duty to control the conduct of persons present on his property when he'knows that he can and has the opportunity to control the third party's conduct and is reasonably aware of the necessity for such control'(Mangione v. Dimino, 39 A.D.2d 128, 129, 332 N.Y.S.2d 683;see also,Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868;Bartkowiak v. St. Adalbert's R.C. Church Soc., 40 A.D.2d 306, 340 N.Y.S.2d 137)."We held there that the trial court erred in dismissing the cause of action of a plaintiff injured when a guest pushed him into a bonfire on premises owned by defendants while plaintiff was attending a graduation party at the defendants' home.We found that the plaintiff in that case alleged sufficient facts to establish that the property owner defendants knew or should have known of the necessity to control the conduct of the third-party defendant because of his intoxicated and otherwise combative state.

Similarly, we find in the present case that plaintiff has established a prima facie case that the Lucases breached their duty as owners of the premises, who had an opportunity...