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The Rogak Report: 03 Dec 2007 ** Recreational Risks - Paintball **

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  • Lawrence Rogak
    Message 1 of 1 , Dec 3, 2007


      Courts v. Gushee,   NYLJ 12/03/07, Index no. 102526/04, Supreme Court, New York County (Tolub, j)

      This personal injury action arose "out of an accident involving five teenagers, some illegal drugs, and a paintball gun." On the date of the incident, fifteen-year-old plaintiff Harley Courts  was injured when he when he was shot in his left eye with a paintball gun wielded by nineteen-year-old defendant Vincent DiPilato. The accident occurred in the home of defendants Cheryl and Philip Gushee (now deceased).  The paintball gun was owned by Mr. Gushee, but was primarily used by his fifteen-year-old son, Eric Gushee, who kept the paintball gun in an unsecured box in his bedroom closet.

      In June, 2001, Philip Gushee purchased a paintball gun for his fifteen-year-old son, Eric. The paintball gun was the second paintball gun purchased by Mr. Gushee, and was used by Mr. Gushee and his son on several occasions at a paintball arena in New Jersey. Neither the bedroom closet nor the box where the paintball gun was stored were ever secured in any manner.

      On December 9, 2001, Eric invited plaintiff Harley Courts, fifteen-year-old Eddie Gordon, and Mr. DiPilato into his parents' apartment. According to Harley's deposition testimony, the group spent part of the afternoon smoking marijuana both inside and outside the apartment. At some point, Harley and Eddie located and removed the paintball gun from Eric's bedroom closet and began taking turns shooting the gun into an empty trash can. After firing the gun several times, Harley pointed the paintball gun at Eric. Eric ran from Harley, and Harley put the paintball gun down. Mr. DiPilato then picked up the paintball gun, loaded it, and fired the paintball gun twice: once into the back of Harley's leg, and once into Harley's eye. Mr. DiPilato admits that the group smoked marijuana on the day of the incident and that he indeed shot Harley in the eye, but denied that he ever loaded the paintball gun.

      Harley's father, Randall Courts, commenced an action against Cheryl Gushee and Ms. O'Malley alleging that Cheryl and Philip were negligent in failing to properly supervise their premises, their child, and Mr. DiPilato.  Mrs. Gushee and Ms. O'Malley commenced a third-party action against Mr. DiPilato for contribution and/or indemnification.  Harley Courts thencommenced a third action against Eric Gushee alleging that Eric was negligent in allowing Mr. DiPilato to fire the paintball gun. All three actions were consolidated.  The Gushee defendants moved for summary judgment.

      "As with any motion to dismiss,"  held the Court, "the only inquiry made by the court is whether plaintiffs' Facts, as alleged, fit within any cognizable legal theory upon which plaintiffs may succeed. By contrast, a motion for summary judgment limits the role of the court to finding factual issues which would warrant trial. Therefore, unless the opposing party produces evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring trial, summary judgment will be granted."

      "Under either standard of review, there is no cause of action asserted against Eric Gushee. Review of the three submitted complaints which have since been consolidated, indicates that the only cause of action alleged against Eric Gushee is one for negligent supervision of an adult. Contrary to plaintiffs' assertions, this court has found no law in this State which imposes a duty upon a fifteen-year old to supervise a nineteen-year old. As such, the cause of action asserted against Eric Gushee is dismissed."

      "Turning next to the issue of parental liability, it is well established that a parent is generally not responsible for torts committed by their child. However, a parent owes a duty to third parties to shield them from an infant's improvident use of a dangerous instrument, at least, if not especially, when the parent is aware of and capable of controlling its use.  A parent is responsible for the failure to use reasonable care in entrusting or leaving in the possession of the child an instrument which, in view 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."

      "The dangerous instrument, in this case, is a paintball gun, which, as defined under Penal Law ยง265.05, is an air gun. Unless used at an appropriate entertainment facility, a paintball gun, by statute, is prohibited to be in the possession of an individual under the age of sixteen. Purchasing and then giving a paintball gun to a fifteen year old therefore violates the statute and constitutes negligence per se. The question then, becomes whether the violation of the statute, i.e. purchasing and then giving a fifteen year old a paintball gun, was a proximate cause of Harley Court's injuries."

      "The facts of this case and papers presented by the parties do not yet answer this question. If anything, the papers raise several significant questions, including whether Mr. DiPilato's actions, as an adult, constitute a superseding event which would absolve Cheryl and Philip Gushee from liability and whether the admitted use of illegal drugs by all three fifteen-year-olds and nineteen year old Mr. DiPilato played a contributory role to Harley's injures. As such, summary judgment must be, and is denied as to all parties. The balance of the motion to dismiss advanced by defendants Cheryl Gushee and Susan O'Malley is also denied."

      Comment:  The most interesting part of this decision, I think, is the novel holding that a teenager has no duty to supervise another teen who happens to be an adult (over 18).  Sometimes, the denial of summary judgment is as instructive as the granting of such a motion.  This decision illustrates some of the legal aspects of a negligent entrustment claim, as well as some of the idiotic situations in which teenage boys can get involved during their "stupid years."

      Larry Rogak


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