Two dissenters argued that the majority of a Manhattan appellate court acted too quickly in affirming the dismissal of a lawsuit filed by a woman upended by a suitcase that was being pulled down the street.

The unsigned two-paragraph decision by a three-judge majority of the Appellate Division, First Department, held that the plaintiff had presented no evidence that either of the suitcase’s owners were responsible for the accident.

But Justices David Saxe (See Profile) and Peter Tom (See Profile) argued in a 10-page dissent that the lower court should consider another possibility: that the couple’s 2-year-old daughter had been tugging the suitcase, supporting a claim for negligence against her parents.

“However innocuous a wheeled suitcase might seem generally when handled by adults or larger and older children, when it is the same size as the two-year-old child wielding it, the potential hazards it could create may warrant imposing on the parent supervising the child a greater degree of care and supervision, to ensure that the object does not unwittingly turn into a hazardous object that may foreseeably cause harm to nearby pedestrians,” Saxe wrote in his dissent, joined by Tom, in Koulajian v. Smith, 8137.

The majority consisted of Justices Angela Mazzarelli (See Profile), Leland DeGrasse (See Profile) and James Catterson (See Profile). The appeal was argued on Sept. 6.

Arpi Koulajian said that as she was walking down an Upper East Side sidewalk in October 2009, a wheeled suitcase hit her from behind. She did not see the suitcase until she fell and did not know who was handling it.

The child’s father, David Austin, said in a deposition that he was holding his daughter’s right hand while she pulled the suitcase behind her.

The parents (the child’s mother is Tamara Smith) moved for summary judgment, arguing their daughter pulled the suitcase and being 2-years-old she could not be found negligent. They also said they could not be held responsible, pointing out parents cannot be made liable for a child’s lack of supervision unless the accident was foreseeable from the child’s improvident use of a dangerous instrument subject to the control of the parents. The suitcase, they said, was not a dangerous instrument.

Koulajian responded that there was a factual issue regarding who had the suitcase; the little girl weighed less than 30 pounds and was no taller than the suitcase, she noted.

In April 2011, Manhattan Supreme Court Justice Milton Tingling Jr. (See Profile) granted the parents’ summary judgment motion, writing that a suitcase “is not a dangerous instrument in and of itself. There is no evidence offered that the suitcase was being used in a dangerous manner.”

In its affirmance, the majority said there was “no evidence” supporting Koulajian’s contention that either defendant was pulling the suitcase. With Koulajian “insist[ing]” the girl was not in control of the suitcase, the majority said her negligent supervision claim failed “ as such a cause of action is dependent on an allegation that a child improvidently used or operated a dangerous instrument. In light of this, the dissent’s argument concerning whether the suitcase was a dangerous instrument is wholly academic.”

In his dissent, Saxe said he agreed with the majority that no evidence was presented to suggest the parents controlled the suitcase.

But he disagreed with Tingling’s “implicit conclusion that entrusting a two year old with a medium-sized wheeled suitcase on a Manhattan sidewalk does not, as a matter of law, create a dangerous instrumentality.”

Instead, he said he would have denied summary judgment, finding an issue of fact on whether the parents violated their duties to third parties by creating an unreasonable risk of harm to others” when letting their daughter tow the suitcase.

Saxe observed that the Pattern Jury Instruction 2:260 did not present the issue of negligent entrustment in terms of a “dangerous instrument.”

Instead, it says parents are responsible “for the failure to use reasonable care in entrusting to or leaving in the possession of the child an instrument which, in view of the nature of the instrument, the age, intelligence, and disposition of the child and (his, her) prior experience with such an instrument, constitutes an unreasonable risk of harm to others.”

Saxe acknowledged that “a wheeled suitcase is not normally a dangerous instrument.” But, he continued, “the critical inquiry does not focus solely on the instrumentality itself” and instead weighed the factors laid out in the Pattern Jury Instruction, such as the nature of the instrument and the child’s age and prior experience with the item.

The suitcase, “in the hands of a possibly heedless two year old wielding it without parental oversight on a Manhattan sidewalk, could turn into a hazard, creating ‘an unreasonable risk of harm to others,’” Saxe wrote, again citing the Pattern Jury Instruction.

Fredric Lewis of Manhattan represented Koulajian.

Shawn O’Shaughnessy of DeSena & Sweeny in Hauppauge represented Smith and Austin.

“We’re pleased with the court’s decision,” O’Shaughnessy said, although he declined to comment on the dissent’s arguments.

The suitcase—the sort that is stowed in an airplane’s overhead compartment—was empty, said O’Shaughnessy.

As a result of her fall, Koulajian, 70, required surgery on her right arm and wrist.