Earsing v. Nelson

• Decision Date: 09 June 1995
• Docket Number: No. 1,1
• Citation: 212 A.D.2d 66,629 N.Y.S.2d 563
• Parties: Karen EARSING, Individually and as Parent and Natural Guardian of Bryan Earsing, an Infant, and Bryan Earsing, Individually, Appellants-Respondents, v. Bonnie L. NELSON, et al., Defendants, Service Merchandise Company, Inc., Appellant, and Daisy Manufacturing Company, Inc., Respondent. Appeal
• Court: New York Supreme Court — Appellate Division

Page 563

629 N.Y.S.2d 563

212 A.D.2d 66

Karen EARSING, Individually and as Parent and Natural Guardian of Bryan Earsing, an Infant, and Bryan Earsing, Individually, Appellants-Respondents, v. Bonnie L. NELSON, et al., Defendants Service Merchandise Company, Inc., Appellant and Daisy Manufacturing Company, Inc., Respondent. Appeal No. 1.

Supreme Court, Appellate Division Fourth Department.

June 9, 1995.

Napier, Fitzgerald and Kirby by Kenneth Kirby, Buffalo, for appellants-respondents--Earsing.

Feldman & Kieffer by James Kieffer, Buffalo, for appellant--Service Merchandise Co., Inc.

O'Shea, Reynolds and Cummings by Kevin Bauer, Buffalo, for respondent--Daisy Mfg. Co., Inc.

Before GREEN, J.P., and LAWTON, WESLEY, DOERR and DAVIS, JJ.

WESLEY, Justice.

I

Plaintiff Bryan Earsing was injured when he was hit by a BB shot from a gun that was manufactured by defendant Daisy Manufacturing Company, Inc. (Daisy), and sold by defendant Service Merchandise Company, Inc. (Service) to defendant Nicholas Nowinski, a 13-year-old boy. After purchasing the gun, Nowinski gave it to a 17-year-old friend, defendant Michael Garvey, for safekeeping. Plaintiffs allege that Garvey accidentally shot Bryan Earsing with the BB gun, not knowing it was loaded at the time.

Plaintiffs appeal from an order granting the motion to dismiss the first (negligence), second (negligent entrustment), fourth (illegal sale), and sixth (derivative) causes of action of the complaint and amended complaint against Daisy. Service cross-appeals from the same order denying its motion to dismiss the first, second, third (illegal sale), and sixth causes of action of the complaint against it. Service also appeals from a subsequent order denying its motion to dismiss the same causes of action and the fifth (strict products liability) cause of action of the amended complaint against it.

Service's cross appeal is dismissed. That part of the order from which it cross-appeals was superseded by the subsequent order (see, Matter of Eric D. [appeal No. 1], 162 A.D.2d 1051, 559 N.Y.S.2d 156).

On appeal, plaintiffs contend that it was error to dismiss the negligence cause of action against Daisy. Similarly, plaintiffs argue that they have stated causes of action against Daisy as well as Service for negligent entrustment and illegal sale of the air gun. Service and Daisy argue that all three causes of action should be dismissed because, whether or not they owed plaintiffs a duty to keep the air gun out of Nowinski's hands, they owed no duty to prevent Garvey from shooting Bryan Earsing.

Service also argues that the strict products liability cause of action against it should have been dismissed, because plaintiffs have not alleged that the air gun was defective. Daisy, which did not move to dismiss the strict products liability cause of action against it in Supreme Court, argues on appeal that this Court should now dismiss that cause of action. Plaintiffs respond that they have submitted an expert's affidavit to support their allegation that the air gun was defective.

Finally, Service argues, and plaintiffs concede, that a portion of plaintiff Karen Earsing's derivative cause of action must be stricken. Plaintiffs argue, however, that the remainder of Karen Earsing's derivative cause of action should be reinstated against Daisy, at least with respect to the strict products liability cause of action that Daisy did not move to dismiss, and also with respect to any other causes of action against Daisy that are reinstated.

II

Supreme Court erred in dismissing the first cause of action for negligence against Daisy but properly refused to dismiss it against Service. Considering both the amended complaint and plaintiffs' affidavits on the motions (see, Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Embee Advice Establishment v. Holtzmann, Wise & Shepard, 191 A.D.2d 194, 595 N.Y.S.2d 675), plaintiffs have alleged both negligent design (see, Lancaster Silo & Block Co. v. Northern Propane Gas Co., 75 A.D.2d 55, 62, 427 N.Y.S.2d 1009) and failure to warn (see, Cooley v. Carter-Wallace, Inc., 102 A.D.2d 642, 648, 478 N.Y.S.2d 375) on the part of Daisy and Service. Although Daisy and Service had no duty to control the conduct of Garvey to prevent him from causing injury to Bryan Earsing (see, Purdy v. Public Adm'r of County of Westchester, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 526 N.E.2d 4), Garvey's intervening acts do not automatically sever the causal connection between the alleged negligence of Daisy and Service and Bryan Earsing's injury (see, Bjelicic v. Lynned Realty Corp., 152 A.D.2d 151, 155, 546 N.Y.S.2d 1020, appeal dismissed 75 N.Y.2d 947, 555 N.Y.S.2d 693, 554 N.E.2d 1281). "In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" (Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666). Whether the alleged negligence of Daisy and Service was a proximate cause of Bryan Earsing's injuries is a question of fact for the jury.

III

The court also properly denied Service's motion to dismiss the second cause of action for negligent entrustment. The tort of negligent entrustment is based on the degree of knowledge the supplier of a chattel had or should have had concerning the entrustee's propensity to use the chattel in an improper or dangerous fashion (Splawnik v. DiCaprio, 146 A.D.2d 333, 335, 540 N.Y.S.2d 615). If such knowledge can be imputed, the supplier owes a duty to foreseeable parties to withhold the chattel from the entrustee (Splawnik v. DiCaprio, supra, at 335, 540 N.Y.S.2d 615). Gun sales to children have been included in that category (Splawnik v. DiCaprio, supra, at 335, 540 N.Y.S.2d 615). There is no authority, however, to extend liability on this theory against Daisy, the manufacturer of the air gun (see generally, Kyte v. Philip Morris, Inc., 408 Mass. 162, 169-170, 556 N.E.2d 1025, 1028-1029; Salinas v. General Motors Corp., 857 S.W.2d 944, 948 [Tex.App.], and thus the court properly dismissed that cause of action against it.

IV

We further conclude that the court properly denied Service's motion to dismiss the cause of action for illegal sale but properly dismissed that cause of action against Daisy. Contrary to Service's argument, a private cause of action may fairly be implied from Penal Law § 265.10(5), which prohibits the sale of air guns to children under 16, and General Business Law § 399-s, which requires the posting of a sign to that effect in stores where air guns are sold. In ascertaining whether a private action may be implied, the essential factors are:

"(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme"

(Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 633, 543 N.Y.S.2d 18, 541 N.E.2d 18; Doe v. Roe, 190 A.D.2d 463, 471, 599 N.Y.S.2d 350, lv. dismissed 82 N.Y.2d 846, 606 N.Y.S.2d 597, 627 N.E.2d 519). Applying those factors, we conclude that a private cause of action can be inferred from those statutes (see, Sickles v. Montgomery Ward & Co., 6 Misc.2d 1000, 167 N.Y.S.2d 977; Henningsen v. Markowitz, 132 Misc. 547, 230 N.Y.S. 313; cf., Masone v. Unishops of Modell's, Inc., 73 A.D.2d 611, 422 N.Y.S.2d 450, affd. 52 N.Y.2d 855, 437 N.Y.S.2d 78, 418 N.E.2d 671; Willigan v. Sears, Roebuck & Co., 33 A.D.2d 1033, 308 N.Y.S.2d 74, affd. 28 N.Y.2d 680, 320 N.Y.S.2d 737, 269 N.E.2d 399). Whether the alleged statutory violations ...