The following papers read on this motion:Notice of Motion and Affidavits XAffirmation in Opposition XReply Affirmation XRelief Requested Motion by the defendants, James Drew Golden and Elizabeth Wydler Golden, for an order pursuant to CPLR 3212 for summary judgment dismissing the plaintiff’s complaint. The plaintiff submits opposition. The defendants submit a reply affirmation.BackgroundThe plaintiff initiated the instant action for personal injuries sustained on May 13, 2015, when she was struck by a golf club that was swung by the defendants’ seven year old child. On the day of the subject accident, plaintiff was babysitting the defendants’ children. Mr. Golden was home at the time of the subject accident, but was not outside when it occurred. Ms. Golden was not home at the time of the subject accident. Eventually, the children brought golf clubs from the garage into the yard, where they played for approximately fifteen minutes prior to the subject accident. Plaintiff alleges that the defendants were negligent in allowing their infant daughter to swing a golf club when they knew or should have known that it would pose a danger, failing to supervise their daughter, and failing to train their daughter in the appropriate and proper use of golf clubs.The parties offer different versions of events as to how the subject accident occurred. The plaintiff alleges that she was walking inside to get the children a drink and was standing in the concrete patio area when one of the defendants’ children asked her to turn around and watch him hit a golf ball. When she turned, she was struck by the club being swung by the defendants’ daughter. However, the defendants claim that their daughter told Mr. Golden that she was lining up to hit a golf ball on the grass when she swung and hit the plaintiff.Applicable LawThe parental duty principle is designed “to protect third parties from the foreseeable harm that results from the children’s improvident use of dangerous instruments, to the extent that such use is subject to parental control” (Abdolozadeh v. Conair Corp., 2016 NY. Slip Op 31277, quoting LaTorre v. Genesee Mgmt., 90 N.Y.2d 576; see also Nolechek v. Gesuale, 46 N.Y.2d 332).To establish a cause of action for negligent entrustment, the conduct complained of must create a danger to the public at large (Kelchner v. John Deere Co., 149 A.D.3d 911). “[P]arental liability for negligent entrustment is limited to circumstances where a parent’s conduct creates a particularized danger to third persons that is plainly foreseeable” (Abdolozadeh v. Conair Corp., supra, citing Rios v. Smith, 95 N.Y.2d 647).DiscussionHere, plaintiff’s claim regarding negligent supervision is undermined by the fact that the plaintiff was retained for the very purpose of supervising the children she claims were not properly supervised. Similarly, the plaintiff acknowledges allowing the defendants’ children to play with golf clubs under her supervision for at least fifteen minutes without issue or objection. Even pursuant to plaintiff’s version of events, plaintiff had a duty to supervise and was the only individual with custody and control of the infant children at the time of the subject accident (see Abdolozadeh v. Conair Corp., supra; see also Kolodziejczak v. Kolodziejczak, 83 A.D.3d 1377; see also Costello v. Marchese, 137 A.D.2d 482). As such, it cannot be said that the defendants’ conduct created a foreseeable danger to the public at large (see Kelchner v. John Deere Co., supra).ConclusionIn light of the foregoing, it is herebyORDERED that the defendants’ motion is granted and therefore, the action is dismissed.Dated: July 11, 2019
