| N.Y. App. Div. | Mar 15, 2002
Appeal from an order of Supreme Court, Erie County (Mahoney, J.), entered January 11, 2001, which, inter alia, granted the motion of defendants Bernard Bruenn, Mary Jane Bruenn, and Matthew Bruenn for summary judgment.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion of defendants Bernard Bruenn, Mary Jane Bruenn, and Matthew Bruenn in part and reinstating the complaint against defendant Matthew Bruenn and as modified the order is affirmed with costs to plaintiffs.
Memorandum: Plaintiffs commenced this negligence action seeking damages for injuries sustained by Gregory T. Bruenn (plaintiff) and his daughter when they were struck by an all-terrain vehicle (ATV) operated by defendant Lawrence S. Pawlowski. Plaintiffs allege that defendants Bernard Bruenn and Mary Jane Bruenn, the owners of the property where plaintiff, his daughter and Pawlowski were camping, negligently permitted Pawlowski to operate an ATV on their premises and that defendant Matthew Bruenn, then age eight, was negligent in shining a flashlight into the face of Pawlowski as he approached on his ATV, causing him to run into plaintiff and his daughter.
The court properly granted that part of the Bruenn defendants’ motion seeking summary judgment dismissing the complaint against Bernard Bruenn and Mary Jane Bruenn. Those defendants, who were not present at the time of the accident and were unaware that Pawlowski would be on their property, owed no duty to prevent or control the conduct of Pawlowski in operating his ATV while in an allegedly intoxicated condition (see, D’Amico v Christie, 71 NY2d 76, 85; Carmichael v Faxon, 266 AD2d 693).
The court erred, however, in granting that part of the Bruenn defendants’ motion seeking summary judgment dismissing the complaint against Matthew Bruenn. Matthew’s alleged admission to shining a flashlight in the face of Pawlowski as he approached on the ATV, although hearsay, is competent evidence as the admission of a party (see, Reed v McCord, 160 NY 330, 341; Newman v Vetrano, 283 AD2d 264; Smith v Kuhn, 221 AD2d 620). Further, whether such conduct, if undertaken by Matthew, “deviated from the degree of care expected of a reasonably prudent child of his age, experience, intelligence, and degree of development” (Sorto v Flores, 241 AD2d 446, 447) presents an issue of fact for trial (see generally, Camardo v New York State Rys., 247 NY 111, 115; Carmen P. v PS&S Realty Corp., 259 AD2d 386, 388). We therefore modify the order by denying the Bruenn defendants’ motion in part and reinstating the complaint against Matthew Bruenn. Present— Pigott, Jr., P.J., Pine, Hayes, Hurlbutt and Lawton, JJ.