Opinion
23895-2006.
Decided March 23, 2009.
Law Offices of Donald T. Rave, Attorneys for Plaintiffs, Nicoletti Hornig Sweeney, Attorneys for Deft Midland Boat Sales, New York, New York.
Wilson, Elser, Moskowitz, Edelman Dicker, Attorneys for Deft Rinker Boat Company, Attorneys for Deft Federal-Mogul Corp.
ORDERED that the motion (004) by defendant, Federal Mogul Corp., and the cross-motion (005) by defendant, Rinker Boat Company, Inc., which seek leave to serve amended answers asserting counterclaims against plaintiffs, Robert Pavelka and Jennifer Pavelka, for negligent entrustment of a dangerous instrument, is hereby denied; and it is further
ORDERED that counsel for defendant, Federal Mogul Corp., shall promptly serve a copy of this Order upon all parties pursuant to CPLR § 2103(b)(1), (2) or (3), and shall thereafter file the affidavit(s) of service with the Suffolk County Clerk.
This action arose from an incident that occurred on August 7, 2006, when the plaintiffs' boat, a 25-foot Rinker Fiesta Vee 250, exploded and caught fire while docked at Coney's Marina in Huntington, New York. The plaintiffs allege that the explosion occurred when their son, Alex Pavelka, attempted to start the boat's engine. Alex was 16 years old at the time. Plaintiffs seek to recover damages for personal injuries allegedly sustained by Alex, as well as for alleged property damage to the boat.
The plaintiffs complaint alleges causes of action against each defendant sounding in negligence, strict liability, and breach of warranty. Defendant, Midland Boat Sales Corp., d/b/a Kehl's Family Boating Center ("Midland"), is alleged to have sold the boat to plaintiff, Robert Pavelka, on April 9, 2005. Defendant, Rinker Boat Company, Inc. ("Rinker"), is alleged to be the manufacturer of the boat, while defendant, Volvo Penta of the Americas, Inc. ("Volvo"), is alleged to be the boat's engine manufacturer. The engine's fuel pump was allegedly manufactured by defendant, Federal Mogul Corp. ("Federal Mogul").
The defendants, Federal Mogul and Rinker, now seek leave to serve an amended answer, asserting a counterclaim against the injured plaintiff's parents, plaintiffs Robert and Jennifer Pavelka, on the theory of negligent entrustment of a dangerous instrument, to wit, the plaintiffs' boat. The defendants essentially allege that a boat has the potential of exploding when started, if the proper pre-start procedures are not followed. Therefore, according to the defendants, the Court should find that plaintiffs' boat constitutes a "dangerous instrument" for purposes of allowing the defendants to serve an amended answer asserting counterclaims against Alex's parents for negligent entrustment.
With regard to motions to amend pleadings, CPLR § 3025(b) provides that a party "may amend his pleading . . . at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just . . ." Leave to amend pleadings is, generally, to be freely granted, provided that the proposed amendment does not prejudice or surprise the defendants, is not patently devoid of merit, or is not palpably insufficient as a matter of law ( see, Lucido v Mancuso , 49 AD3d 220 , 851 NYS2d 238 [2d Dept 2008]; Glassman v ProHealth Ambulatory Surgery Ctr., Inc. , 23 AD3d 522 , 806 NYS2d 648 [2d Dept 2005]; Pirrotti Pirrotti, LLP v Estate of Warm , 8 AD3d 545 , 778 NYS2d 705 [2d Dept 2004]; Ortega v Bisogno Meyerson , 2 AD3d 607 , 769 NYS2d 279 [2d Dept 2003]; Sunrise Plaza Assocs., L.P. v Int'l Summit Equities Corp., 288 AD2d 300, 733 NYS2d 443 [2d Dept 2001]).
Typically, the merits of a proposed amendment will not be examined by the court on a motion for leave to amend, unless the insufficiency or lack of merit is clear and free from doubt ( Fisher v Ken Carter Industries, Inc., 127 AD2d 817, 512 NYS2d 408 [2d Dept 1987]; Courageous Syndicate v People-to-People Sports Comm., 141 AD2d 599, 529 NYS2d 520 [2d Dept 1988]; Rothfarb v Brookdale Hosp., 139 AD2d 720, 527 NYS2d 473 [2d Dept 1988]). Ultimately, the decision to allow or disallow the amendment is committed to the court's sound discretion and when an examination for sufficiency or merit is necessary, leave to amend should be denied where the proposed amendment is palpably improper or insufficient as a matter of law ( Courageous Syndicate v People-to-People Sports Comm., supra; Rothfarb v Brookdale Hosp., supra). The facts presented in this action warrant such an examination by the Court as to the sufficiency and merit of the defendants' proposed counterclaims.
With regard to claims against the parents of infant plaintiffs, New York's General Obligations Law (GOL) § 3-111 states: "In an action brought by an infant to recover damages for personal injury the contributory negligence of the infant's parent or other custodian shall not be imputed to the infant." In general, therefore, the allowance of a counterclaim or third-party complaint for negligent supervision of children contradicts GOL § 3-111 ( LaTorre v Genesee Mgmt., Inc., 90 NY2d 576, 665 NYS2d 1). While GOL § 3-111 does not preclude recovery of contribution by a defendant against a parent whose conduct toward the child would be a tort if done by one ordinary person to another, the statute does preclude contribution where a parent's failure to provide adequate supervision would result in diminishment of the child's recovery against a third party ( Holodook v Spencer, 36 NY2d 35, 364 NYS2d 859; but see, Nolechek v. Gesuale, 46 NY2d 332, 413 NYS2d 340 ).
In order for a third-party claim of negligent supervision against a parent or guardian to withstand, negligence must be alleged and pleaded with some reasonable specificity, beyond mere generalities. The extraordinariness or patent foreseeability of the particular situation are factors to be considered in determining whether a claim may be allowed to stand that would drive the entire family into a conflicted litigation experience ( LaTorre v Genesee Mgmt., Inc., 90 NY2d 576, 665 NYS2d 1).
Prior to this incident, the plaintiffs had raised concerns to defendant Midland's representative, Tom Kehl, about a problem with the boat's acceleration. Based on these facts, the defendants assert, with mere generality, that Alex's parents were, therefore, aware of the potential for an explosion on [*3]the boat. The evidence, however, establishes that the plaintiffs were informed by Mr. Kehl that the acceleration problem was related to barnacle build-up on the boat's propeller area. Mr. Kehl also assured the plaintiffs that it was not necessary for Mr. Kehl to go to the boat to inspect the condition. Instead, he instructed the plaintiffs to take the boat near the shore to scrape off the barnacles. The plaintiffs, believing Mr. Kehl to be an expert, relied on his assurance that removing the barnacles would resolve the problem. Alex was preparing to bring the boat to the shore when the explosion occurred.
The evidence shows that Alex checked the engine compartment for gasoline vapors and followed the recommended safety procedures before attempting to start the boat. Therefore, even if the plaintiff-parents had entrusted the boat to an adult, the explosion would, nevertheless, have occurred. It is also clear that Alex's age, 16 years old at the time of the incident, had no bearing on the occurrence. At the time of the incident, he was an experienced boater. By the time he was in fourth grade, Alex had already received his Coast Guard boating certification. He had also been authorized by New York State prior to the incident to operate the boat in question, having previously completed the course required by Navigation Law Section 49 for such authorization. Alex had also been employed by the Town of Huntington for two years as an operator of the Town's pump-out boat in Huntington Harbor. In addition, with regard to the particular boat involved in the incident, Alex had prior experience operating the boat, he had read its operating manuals with his father, and he had been trained by his father in general safe boating procedures. These facts clearly distinguish this case from the cases relied upon by the defendants.
For example, in Nolechek v. Gesuale, 46 NY2d 332, 413 NYS2d 340, the finding of negligent entrustment was premised upon the infant's father entrusting him with a motorcycle, despite the fact that infant was blind in one eye, had impaired vision in the other eye, and did not possess a driver's license. In Kelly v DiCerbo , 27 AD3d 1082 , 811 NYS2d 530 [4th Dept 2006], three neighbors of the parents submitted affidavits stating that they had seen the infant boat driver operating the boat in a reckless manner on several prior occasions. Finally, in Deperno v Hans, 18 Misc 3d 1119A, 856 NYS2d 497 [Sup Ct, Cortland County 2007], an 8 year-old, who was unable to properly reach the pedals, was entrusted with the use of a golf cart.
Based the foregoing, neither Alex's age nor any alleged inexperience could be said to be the proximate cause of the explosion. Under the facts and evidence presented, this Court finds that the defendants' proposed counterclaim against Alex's parents for negligent entrustment is patently devoid of merit and palpably insufficient as a matter of law ( Courageous Syndicate v People-to-People Sports Comm., supra; Rothfarb v Brookdale Hosp., supra). Therefore, the motion and cross-motion are denied.
This constitutes the Decision and Order of the Court.