Summary
In Aquino, the Court was addressing the theories of liability against the adult homeowners (parent-defendants) related to injuries sustained by an intoxicated minor.
Summary of this case from Parslow v. LeakeOpinion
No. 189.
Argued October 12, 2010.
Decided November 18, 2010.
APPEAL from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered December 30, 2009. The Appellate Division order, insofar as appealed from, with two Justices dissenting in part, modified, on the law, an order and judgment (one paper) of the Supreme Court, Erie County (Christopher J. Burns, J.), to the extent that it had denied that portion of a motion by defendants-respondents for summary judgment dismissing plaintiffs fourth cause of action alleging negligent supervision. The modification consisted of granting defendants-respondents' motion in its entirety and dismissing the complaint as against them.
Plaintiff commenced an action seeking damages for injuries he sustained while he was a passenger in a vehicle that was driven by then 19-year-old defendant and owned by his parents. The record established that defendant parents permitted their daughter to host a party at their residence and that she was expressly told that no alcohol was to be served. Although the parents observed the guests arrive, they did not observe anyone take alcohol into the basement where the party was held. The parents were not aware that there was alcohol present at the party until defendant mother entered the basement at the end of the party and observed approximately 12 beer cans. Defendant father suspected that his son had been drinking, and he escorted his son to the son's bedroom and instructed him to go to bed. The parents had each observed the guests after discovering the alcohol, and they each testified at their depositions that none of the guests appeared to be intoxicated. Plaintiff, however, presented deposition testimony of other guests who testified that plaintiff appeared to be intoxicated. The parents were unaware that their son had left the house to drive plaintiff and another person home until they were notified of the accident that was the subject of this action.
Aquino v Higgins, 68 AD3d 1650, reversed.
Brown Chiari LLP, Lancaster ( Samuel J. Capizzi of counsel), for appellant.
Dennis J. Bischof, LLC, Williamsville ( Dennis J. Bischof of counsel), for respondents.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the fourth cause of action against John and Heather Higgins reinstated.
There is an issue of fact as to whether defendants provided adequate supervision for minor guests who became intoxicated at their home and, in particular, whether defendants properly supervised their departure from the premises ( compare Rudden v Bernstein, 61 AD3d 736, 738 [2d Dept 2009]). Since the basis of any liability on defendants' part, assuming proximate cause, rests on the duty to supervise ( see Appell v Mandel, 296 AD2d 514 [2d Dept 2002]), rather than their duty as landowners, it is not dispositive that the injury occurred off premises. As a result, summary judgment should not have been granted in defendants' favor and the cause of action for negligent supervision should be reinstated.
In memorandum.
Order, insofar as appealed from, reversed, etc.