The plaintiff was allegedly injured when she was struck by a battery-powered scooter operated by a child. At the time of the incident, the child was under the care of the plaintiff and her husband. The defendant, who is the child’s mother, was not present. The plaintiff and her husband, suing derivatively, commenced a negligence against the defendant alleging, among other things, that the defendant negligently entrusted the child with a dangerous instrument. The defendant moved for summary judgment dismissing the complaint, but the lower court denied this motion.
On appeal, the Appellate Division reversed the lower court’s decision. The Court stated the following: “a parent owes a duty to protect third parties from harm that is clearly foreseeable from his or her child’s improvident use or operation of a dangerous instrument, where such use is found to be subject to the parent’s control…[however,] 'items that are commonly used by children, of suitable age in a manner consistent with their intended use, may not, as a matter of law, be classified as dangerous instruments' ([citing] Rios v Smith, 95 NY2d at 653). Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law…[the child] was of a suitable age to use the subject scooter, a toy manufactured for children between the ages of three to six. Further, [the child’s] operation of the scooter was consistent with its intended use. In opposition, the plaintiffs failed to raise a triable issue of fact.”
Salvatore R. Marino, Esq.
