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In a significant expansion of the principle of parental liability, New York’s Court of Appeals last Tuesday upheld a $3 million award in a case where a girl was negligently entrusted with an all-terrain vehicle — not by a parent, but indirectly by a friend’s parent. The court’s ruling in Rios v. Smith and Persico, 4, marked the first time the tribunal has extended the concept of parental liability beyond a parent’s own child. Under this decision, the fact that the operator of the vehicle is not related to the defendant parent is of no relevance. The parental liability case arises out of an accident that occurred in November 1983 when Desiree Rios, then 17, was seriously injured while riding an all-terrain vehicle (ATV) at the Saugerties farm of Theodore Persico. Persico had purchased the vehicles for his children to use on the farm. Rios and her sister had driven up from Brooklyn with Persico’s 17-year-old son, Teddy, and his friend to ride ATVs on the Saugerties property. Mr. Persico was not home at the time. The vehicle on which Rios was riding struck a tree and rolled on top of her, resulting in a lawsuit alleging, among other causes of action, negligent entrustment. A jury found Persico 35 percent liable, on the negligent entrustment theory, and the Appellate Division, 2nd Department, affirmed after reducing the total award from about $9 million to $3 million. On appeal, the central issue was whether a parent can be held liable for negligent entrustment of a dangerous instrument to someone other than his or her own child. Unanimously, the court said there is such liability. THIRD PARTIES In her first signed opinion since joining the panel in November, Judge Victoria A. Graffeo traced the court’s long decisional history on negligent supervision and its oft-stated concern over the devastating impact that liability could have on the parent-child relationship. “Recognizing this potential strain on familial relations, we held that a claim on behalf of an infant against a parent, or by a party seeking contribution or indemnification against a parent, predicated on the parents’ negligent failure to supervise that child would not lie,” Graffeo wrote. However, she noted that the court has also held that “a parent owes a duty to protect third parties from harm that is clearly foreseeable from the child’s improvident use or operation of a dangerous instrument, where such use is found to be subject to the parent’s control.” Here, Graffeo said, the evidence shows that Persico had not established any rules on his son’s use of the ATVs or on lending those vehicles to others. She said Persico “could have clearly foreseen” that the vehicles might be used by one of his son’s friends, exposing the passengers to injury. The court said that Persico’s contention that he could not be held liable for entrusting an ATV to someone who was not his child “places strictures on the controlling precedent that simply do not exist.” The case was argued by Peter J. Maloney of Brooklyn for Rios and Renee Himmel of Oceanside for Persico.

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