PLAINTIFF'S AUTOMOBILE PROPERTY DAMAGE CASE DISMISSED BECAUSE THEY COULDN'T SHOW THAT DEFENDANT KNEW OF OR CONTROLLED HER SON'S USE OF ATV ("PERMISSIVE USE")

Court: Supreme Court, Appellate Term, New York

Case: Donna Palaj and Richard Freisinger v. Bob Hoare and Ellen Boughen

Date: Feb. 9, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury lawyer)

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CITY OF NEW YORK NOT LIABLE FOR CHILD'S ACCIDENT ON PUBLIC PLAYGROUND (Posted by Brooklyn injury lawyer Gary E. Rosenberg on Nov 7, 2011)

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Appeal from a judgment of the City Court of Middletown, Orange County (Robert F. Moson, J.), entered October 6, 2010. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiffs the principal sum of $3,778.16 as against defendant Ellen Boughen.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and judgment is directed to be entered dismissing the action as against defendant Ellen Boughen.

Plaintiffs commenced this small claims action to recover for property damage to their automobile which was involved in a collision with an all terrain vehicle (ATV) driven by the son of defendant Ellen Boughen, and owned by defendant Bob Hoare. After a nonjury trial, the City Court awarded plaintiffs the principal sum of $3,778.16 as against both defendants. Defendant Ellen Boughen appeals and contends, among other things, that plaintiffs failed to prove that she had given her son permission to operate the ATV.

Upon a review of the record, we find that the judgment, insofar as appealed from, failed to provide the parties with substantial justice according to the rules and principles of substantive law (UCCA 1804, 1807; see Ross v. Friedman, 269 A.D.2d 584 [2000]; Williams v. Roper, 269 A.D.2d 125, 126 [2000]). It is well settled that a parent owes a duty to protect third parties from harm which 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 (see Rios v. Smith, 95 N.Y.2d 647, 653 [2001]; Nolechek v. Gesuale, 46 N.Y.2d 332, 340 [1978] ). Here, plaintiffs failed to meet their burden of establishing defendant Boughen's liability because they failed to show that she had any control over, or even knowledge of, her son's use or operation of the ATV involved in the accident, which ATV was owned by defendant Hoare. Accordingly, the judgment, insofar as appealed from, is reversed and judgment is directed to be entered dismissing the action as against defendant Ellen Boughen.

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