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AN ADULT GUEST’S ACT OF POURING KEROSENE ONTO AN ACTIVE FIRE IN A FIRE PIT AT DEFENDANTS’ HOME WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S BURN INJURIES; THE DISSENTER ARGUED THERE WAS A QUESTION OF FACT WHETHER A DUTY TO CONTROL THE GUEST’S BEHAVIOR WAS BREACHED (FOURTH DEPT).

The Fourth Department, over a dissent, determined the sole proximate cause of plaintiff’s burn injuries was a guest’s (Gray’s) pouring kerosene onto an active fire in a fire pit at defendants’ home. All parties were adults. The mere presence of kerosene at the home did not constitute a dangerous condition. The dissenter argued defendant-parent did not demonstrate his daughter did not breach a duty to control the conduct of Gray:

Although plaintiff correctly contends that defendants owed him a duty of care as a guest on their property … , defendants’ submissions establish that they did not breach their duty to “act as . . . reasonable [persons] in maintaining [the] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . All attendees of the gathering at defendants’ property on the night of the incident were adults, and it was not unreasonable for defendants to allow the small group of adults to use the premises for an unsupervised gathering around a fire pit. Bavisotto v Doldan, 2019 NY Slip Op 06247, Fourth Dept 8-22-19

 

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