Gordon v. Harris, 1

• Decision Date: 25 February 1982
• Docket Number: No. 1,No. 2,1,2
• Citation: 448 N.Y.S.2d 598,86 A.D.2d 948
• Parties: Richard D. GORDON, Individually and as Parent and Natural Guardian of Debbie M. Gordon, an Infant, Appellants, v. Edward HARRIS et al., Respondents. (Action) Richard D. GORDON, Individually and as Parent and Natural Guardian of Debbie M. Gordon, an Infant, et al., Respondents-Appellants, v. Edward HARRIS et al., Respondents, and Edward Harris et al., as Parents and Natural Guardians of Mark Harris, an Infant, et al., Appellants-Respondents. (Action)
• Court: New York Supreme Court — Appellate Division

Page 598

448 N.Y.S.2d 598

86 A.D.2d 948

Richard D. GORDON, Individually and as Parent and Natural Guardian of Debbie M. Gordon, an Infant, Appellants, v. Edward HARRIS et al., Respondents. (Action No. 1.)

Richard D. GORDON, Individually and as Parent and Natural Guardian of Debbie M. Gordon, an Infant, et al., Respondents-Appellants, v. Edward HARRIS et al., Respondents, and Edward Harris et al., as Parents and Natural Guardians of

Mark Harris, an Infant, et al.,

Appellants-Respondents. (Action No. 2.)

Supreme Court, Appellate Division,

Third Department.

Feb. 25, 1982.

E. Stewart Jones, Jr., Troy (Robert M. Cohen, Ballston Lake, of counsel), for appellants in Action No. 1 and respondents-appellants in Action No. 2.

Bouck, Holloway & Kiernan, Albany (John R. Casey, Albany, of counsel), for appellants-respondents Edward Harris et al. in Action No. 2.

Bond, Schoeneck & King, Albany (David R. Sheridan, Albany, of counsel), for respondents Joseph Fischer and Dolores Fischer.

Before KANE, J. P., and MAIN, MIKOLL, YESAWICH and WEISS, JJ.

MEMORANDUM DECISION.

Cross appeals from an order of the Supreme Court at Special Term, entered February 20, 1981 in Rensselaer County, which granted a motion for summary judgment dismissing the complaint and cross claims as against defendants Edward Harris, Anna Mae Harris, Joseph Fischer and Dolores Fischer, and denied said motion as to defendant Mark Harris.

These are negligence actions to recover damages for personal injuries sustained by the infant plaintiff, Debbie M. Gordon, who, on August 7, 1970, when she was nine years old, was playing in the backyard of the Fischer residence. Mark Harris, then eight years old, was swinging a toy rifle like a golf club when a fragment of the rifle dislodged and struck Debbie in the left eye. These actions were commenced in 1977 and 1978. Special Term granted defendants' motion for summary judgment as to all defendants except Mark Harris. These cross appeals ensued.

There should be an affirmance. Essentially, plaintiffs urge the existence of triable issues of fact sufficient to preclude summary judgment. We disagree. In a negligence action such as the instant one, a trial is necessary to determine liability only where a "real question" as to the landowner's negligence arises (Barnaby v. Rice, 75 A.D.2d 179, 181, 428 N.Y.S.2d 973, affd. 53 N.Y.2d 720, 439 N.Y.S.2d 354, 421 N.E.2d 846; see Quinlan v. Cecchini, 41 N.Y.2d 686, 689, 394 N.Y.S.2d 872, 363 N.E.2d 578; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868). As Special Term found, plaintiffs failed to assert that the Fischers had undertaken a duty to supervise the children. Absent such an undertaking, no such duty exists (cf. Zalak v. Carroll, 15 N.Y.2d 753, 257 N.Y.S.2d 177, 205 N.E.2d 313). Liability here is thus limited to the Fischers' status as landowners. There is no evidence of unreasonable conduct on the part of these defendants (see Rice v. Argento, 59 A.D.2d 1051, 399 N.Y.S.2d 809). Since the accident emanated from the fortuitous conduct of a neighbor's child, the Fischers were entitled to summary judgment dismissing the complaint as against them (see Barnaby v. Rice, supra).

Parental liability for the torts of a child does not arise merely from the parental relationship (Napiearlski v. Pickering, 278 App.Div. 456, 457, 106 N.Y.S.2d 28). Special Term correctly described circumstances under which a parent may be held liable (see Pico v. Canini, 47 A.D.2d 951, 367 N.Y.S.2d 304; Steinberg v. Cauchois, 249 App.Div. 518, 519, 293 N.Y.S.2d 147). Pertinent herein are those instances where liability arises from a parent's failure to supervise a child with a known propensity toward vicious conduct, or where a parent entrusts a child with a dangerous instrument. The bill of particulars specifies that Edward and Anna Mae Harris were negligent in not supervising their child although aware of his vicious propensities. There is, however, nothing in the record to indicate that vicious conduct...