The following papers were considered in connection with the motions by defendants for summary judgment dismissing the complaint against them:Papers — Seqence 1 NumberedNotice of Motion, Affirmation, Exhibits A-K, and Memorandum of Law 1Affirmation in Opposition, Exhibit A, and Memorandum of Law 2Reply Affirmation 3-Sequence 2Notice of Cross-Motion, Affirmation in Support, Exhibits 1-3, and Memorandum of Law 4Affirmation in Opposition, Exhibits A-C, and Memorandum of law 5Reply Memorandum of Law 6DECISION and ORDER This is an action for personal injuries allegedly sustained by infant plaintiff D.R. in an accident that occurred on the Bronxville, New York property of defendants Philip Wiser and Amy Wiser, while D.R. was riding on a “skupboard” with a child of defendants Patrick Martin and Neala Martin. A skupboard is described in the complaint as a “land paddle board,” and by defendant Philip Wiser in his deposition as similar to a skateboard, but larger. D.R. was ten years old at the time of the events at issue.According to the deposition testimony of plaintiff Denise Robles, D.R.’s mother, on the evening of Saturday, September 24, 2016, she brought D.R. to the home of his friend, the son of defendants Patrick and Neala Martin, having previously confirmed with Patrick Martin the boys’ plans for a sleepover. When they pulled into the Martins’ driveway at approximately 8:00 p.m., children called out that they were next door, at the Wisers’ home. Robles drove D.R. to the Wisers’ driveway, where she left him without seeing or speaking to any adults, having confirmed that adults were present inside. D.R. stated at his deposition that after his mother dropped him off, he saw the Martins and the Wisers as he stood outside on the patio, and went inside. He greeted Neala Martin and asked her where to put his bag, and after he placed it where she instructed, he went outside to play. According to D.R., a number of boys were playing on the Wisers’ driveway with skateboards and scooters, as well as a skupboard. D.R. watched other children riding seated on the skupboard, two or three at a time. On each ride they headed downhill on the driveway and then steered the skupboard to veer off to the right by tilting it to the right, and then stopped it using their feet on the ground as brakes. After watching four or five times, he took a turn riding on it himself, seated behind one of the Martins’ sons, who was steering the skupboard. When the child steering the skupboard did not successfully make the intended turn in time, the skupboard hit the paving stones that bordered the driveway, the children fell off the skupboard, and D.R. was allegedly punctured by its pointed tail end.Plaintiffs’ complaint alleges that defendants allowed a hazardous condition to exist, and that they allowed a dangerous instrument to be used, creating an unreasonable risk of harm to third parties in view of the nature of the instrument and the age, intelligence and disposition of the children.Defendants Philip and Amy Wiser move, and defendants Patrick and Neala Martin crossmove, to dismiss the complaint, contending that there is no evidence supporting a claim of negligence against any of them. They submit the deposition testimony of all the parties. In her deposition, Amy Wiser testified that she went outside to check on the children more than five times, and observed them on the trampoline, playing basketball, throwing a tennis ball and running around, but did not see them using a skupboard. Neala Martin also testified that she walked to the driveway to check on the boys two or three times. Philip Wiser acknowledged in his testimony that their family owned two skupboards, which he likened to skateboards. Patrick Martin acknowledged allowing his son to have his friend D.R. come for a sleepover that night, but denied confirming the plan with D.R.’s mother; he also stated that he had seen the skupboards the Wisers had in their garage, and that he observed the skupboard that the boys were riding that evening. Each of the defendants testified that they were unaware that D.R. had joined their children at the Wiser home until they were informed that D.R. was injured.In moving for summary judgment the Wisers argue that there is no support for a claim of negligent supervision against them, in view of the absence of any evidence that they assumed custody or care of D.R., or even that they had reason to know he was there. They further contend that there cannot be any premises liability, since the accident was not caused by a dangerous or defective condition on their property. Finally, they argue that as a matter of law they cannot be found liable for negligent entrustment with a dangerous instrument, since a skupboard is merely a large skateboard and does not qualify as a dangerous instrument. The Martins maintain that they cannot be found liable for negligent supervision, because D.R.’s accident was due to the sudden and abrupt actions of another child. They also contend that under the circumstances here, there can be no legally cognizable claim for negligent supervision based on their supervision of their own children.AnalysisPlaintiffs explain that they are not claiming that the Wisers were negligent in their maintenance of their property, or that there was a dangerous condition on that property. Nor do plaintiffs claim that they entrusted D.R. to the Wisers. Rather, plaintiffs argue that defendants negligently supervised their own children in their use of a dangerous instrument, which negligence resulted in injury to a third person, namely D.R. They cite the rule that“Parents are…obligated to supervise their children. Failure to supervise may entail legal consequence where injury to a third party results, for example, under circumstances where a parent negligently entrusts to his child a dangerous instrument, or an instrument potentially dangerous in the child’s hands, so as to create an unreasonable risk to others” (Holodook v. Spencer, 36 NY2d 35, 45 [1974]).Plaintiffs disagree with Philip Wiser’s assertion that a skupboard is the equivalent of a skateboard, and assert that a skupboard qualifies as a dangerous instrument. In any event, they argue, their claim that it is a dangerous instrument may not properly be summarily dismissed.Defendants cite Young v. Dalidowicz (92 AD2d 242 [2d Dept 1983]), which discussed, inter alia, the above-recited rule from Holodook v. Spencer, supra, along with a line of cases addressing whether particular items qualified as dangerous instruments. The Court in Young v. Dalidowicz acknowledged the rule that “[p]arents are permitted to delegate to their children the decision to participate in dangerous activities, but they are not absolved from liability for harm incurred by third parties when the parents as adults unreasonably, with respect to such third parties, permit their children to use dangerous instruments” (92 AD2d at 246). The question there was whether a skateboard constituted a dangerous instrument. The Court concluded that “the skateboard utilized in the case at bar was not different from other normal items of play used by children such as seesaws, or bicycles, which the courts have held are not dangerous instruments” (Young v. Dalidowicz, 92 AD2d at 248). It therefore dismissed a counterclaim against a father that was based on his alleged negligence “in causing, permitting and allowing [the] infant plaintiff to engage in inherently dangerous and hazardous activity, namely skateboarding on plaintiff['s] driveway.”However, as the decision in Young v. Dalidowicz recognized, determinations of whether an item is a dangerous instrument often turn on the “nature, complexity, and size of the instrument as well as the age and proficiency of the infant utilizing it” (92 AD2d at 248). Therefore, while the Second Department, in Pietrzak v. McGrath (85 AD2d 720 [2d Dept 1981]), held that a seesaw was not a dangerous instrumentality under the circumstances, in another case just one year later, that Court declined to dismiss a negligence counterclaim against a parent based on allowing a child to play on a seesaw (see Lofreddo v. Town of Brookhaven, 87 AD2d 623, 623 [2d Dept 1982]), explaining that “[a]lthough this type of recreational device may not be, per se, a dangerous instrument,” it may become one under certain circumstances, and the record failed to disclose facts relevant to that determination. Similarly, while a bicycle may not be a dangerous instrument, a motorized bicycle placed at the disposal of a 12-year-old boy opened the boy’s father to a claim of negligence for placing a dangerous instrumentality in the possession of and at the disposal of a 12-year-old boy, knowing that it could be used in a dangerous manner likely to cause harm to others (see Lalomia v. Bankers & Shippers Ins. Co., 35 AD2d 114 [2d Dept 1970]).Notwithstanding the skupboard’s similarities in structure to a skateboard, it is apparent from the submitted photographs and the manner in which it was being used on the evening in question that even if the skupboard at issue here may not be, per se, a dangerous instrument, it may become one under certain circumstances, based on how it is used. On the provided record, this Court is unable to come to a conclusion as a matter of law as to whether the manner in which the boys were using it that evening, sitting on it in pairs and attempting to steer it away from a slope, rendered it a dangerous instrument creating an unreasonable risk to others.The Wisers’ motion for summary judgment dismissing the complaint is therefore denied.Turning to the Martins’ cross-motion, in view of the foregoing analysis, and given the testimony of the Martins, particularly Patrick Martin’s agreement to host D.R., his acknowledgement of the presence and possibly the boys’ use of the skupboard, as well as D.R.’s testimony that he spoke to Neala Martin in the Wisers’ home, the claim against the Martins may not be dismissed here. The cases cited by the Martins, holding that when an accident occurs in so short a span of time that no supervision could not have prevented it, “any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the…defendants is warranted” (see e.g. O’Hanlon v. Kids of Mount Sinai, LLC, __AD3d__, 2019 NY Slip Op 02349, 2019 NY App. Div. LEXIS 2358, *2 [2d Dept 2019]), are inapposite here. While the accident itself may have happened too quickly to be stopped, according to D.R.’s testimony that he watched five or six rides on the skupboard, the children’s use of the scupboard in that particular manner had been going on for some time. If it is found that the manner of its use made the skupboard a dangerous instrument, supervision of its use could have prevented any dangerous usage by the Martins’ children, causing injury to a third person.In view of the foregoing,, it is herebyORDERED that defendants’ motion and cross-motion for summary judgment dismissing the complaint is denied, and it is furtherORDERED that the parties are directed to appear in the Settlement Conference Part on Tuesday, May 28, 2019 at 9:15 a.m. to schedule a trial.This constitutes the Decision and Order of the Court.Dated: April 5, 2019White Plains, New York
