Zalak v. Carroll

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: The Supreme Court, Trial Term, Suffolk County, Henry M. Zaleski; DESMOND
• Citation: Zalak v. Carroll, 15 N.Y.2d 753, 257 N.Y.S.2d 177, 205 N.E.2d 313 (N.Y. 1965)
• Decision Date: 14 January 1965
• Parties: , 205 N.E.2d 313 Elizabeth ZALAK, Individually and as Guardian ad Litem for Lorraine Zalak, an Infant under the age of 14 years, Appellant, v. George CARROLL et al., Respondents.

Page 177

257 N.Y.S.2d 177

15 N.Y.2d 753, 205 N.E.2d 313

Elizabeth ZALAK, Individually and as Guardian ad Litem for Lorraine Zalak, an Infant under the age of 14 years, Appellant, v. George CARROLL et al., Respondents.

Court of Appeals of New York.

Jan. 14, 1965.

Appeal from Supreme Court, Appellate Division, Second Department, 20 A.D.2d 823, 248 N.Y.S.2d 762.

Infant's mother, individually and as guardian ad litem for infant, brought action against the infant's uncle and aunt, who cared for the infant while the mother was working, for injuries sustained by the infant when a swing set, on which the infant was playing, fell over on her, and for medical expenses and loss of services.

The Supreme Court, Trial Term, Suffolk County, Henry M. Zaleski, J., entered a judgment in favor of the mother and infant, and the uncle and aunt appealed.

The Appellate Division reversed the judgment on the law and the facts, dismissed the complaint, and held that in absence of evidence that uncle and aunt had prior knowledge that swing set was not safe, they were not liable, where the infant was a social guest or licensee and not an invitee.

The mother and the infant appealed to the Court of Appeals.

Campbell & Miller, Smithtown (Edwin Miller, Smithtown, of counsel), for plaintiffs-appellants.

Pearsall, Lauder & Wheller, Amityville (Henry J. Wheller, Amityville, of counsel), for defendants-respondents.

MEMORANDUM:

Defendants had undertaken to care for the four-year-old plaintiff during periods in which her mother worked. Although when the arrangement for the daily care of the child began defendants were compensated by the mother, no payments were being made at the time of infant plaintiff's injury because of a prior reduction in the mother's earnings. Even without compensation, when defendants undertook to control a young child and provide care for her, they became responsible for her injury through their negligence (Miller v. International Harvester Co., 193 App.Div. 258, 184 N.Y.S. 91; Wallace v. John A. Casey Co., 132 App.Div. 35, 116 N.Y.S. 394; Wittenberg v. Seitz, 8 App.Div. 439, 40 N.Y.S. 899; Gregaydis v. Watervliet Civic Chest, 14 A.D.2d 623, 218 N.Y.S.2d 383; Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 23 A.L.R. 1425). Thus defendants' duty to use reasonable care to protect the infant was not measured by what their duty would have been to a social guest or a mere licensee. They were required to use reasonable care to protect the infant plaintiff...