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DEFENDANT ALLOWED PLAINTIFF’S DECEDENT, 18, TO DRIVE HIS LAMBORGHINI WHILE DEFENDANT WAS A PASSENGER; PLAINTIFF’S DECEDENT LOST CONTROL AT 180 MPH, STRUCK A GUARD RAIL, WAS EJECTED AND DIED FROM HIS INJURIES; THERE WAS A QUESTION OF FACT, RAISED BY PLAINTIFF’S EXPERT, WHETHER DEFENDANT HAD SPECIAL KNOWLEDGE WHICH RENDERED PLAINTIFF’S DECEDENT’S USE OF THE CAR UNREASONABLY DANGEROUS; THE NEGLIGENT ENTRUSTMENT CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined negligent entrustment causes of action should not have been dismissed. Defendant owned a high performance car (a Lamborghini) and allowed plaintiff’s decedent, who was 18, to drive it. Plaintiff’s decedent apparently lost control of the car at 180 mph, struck a guard rail, was ejected and died from his injuries. Defendant was a passenger at the time of the accident:

“The tort of negligent entrustment is based on the degree of knowledge the supplier of a chattel has or should have concerning the entrustee’s propensity to use the chattel in an improper or dangerous fashion” … . To establish a cause of action under a theory of negligent entrustment, the defendant must either have some special knowledge concerning a characteristic or condition peculiar to the person to whom a particular chattel is given which renders that person’s use of the chattel unreasonably dangerous, or some special knowledge as to a characteristic or defect peculiar to the chattel which renders it unreasonably dangerous … . “An owner of a motor vehicle may be liable for negligent entrustment if [he or she] was negligent in entrusting it to a person [he or she] knew, or in exercise of ordinary care should have known, was not competent to operate it” … .

Here, the defendant failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging negligent entrustment. Although the decedent’s possession of a driver license is a factor to be considered, the defendant nevertheless failed to eliminate triable issues of fact as to whether he had special knowledge concerning a characteristic or condition peculiar to the decedent which rendered his use of the Lamborghini unreasonably dangerous … . Shepard v Power, 2023 NY Slip Op 04330, Second Dept 8-16-23

Practice Point: Here there was a question of fact, raised by plaintiff’s expert, whether defendant’s allowing plaintiff’s decedent, 18, to drive defendant’s Lamborghini constituted negligent entrustment. Plaintiff’s decedent lost control at 180 mph, crashed and died from his injuries.

 

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STUDENT ASSUMED THE RISK OF INJURY DURING LACROSSE PRACTICE.
THE CHARGES AGAINST DEFENDANT STEMMED FROM HIS STRIKING AND SERIOUSLY INJURING AN EIGHT-POUND DOG; THERE WAS NO NEED TO INSTRUCT THE GRAND JURY ON THE JUSTIFICATION DEFENSE; INDICTMENT REINSTATED OVER A DISSENT (SECOND DEPT).
THE ACTION, WHICH STEMMED FROM PLAINTIFF’S BEING DROPPED IN THE DELIVERY ROOM IMMEDIATELY AFTER BIRTH, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE TIME-BARRED (SECOND DEPT).
THE NEGOTIATED PLEA REQUIRED NO POST-PLEA ARRESTS; DEFENDANT WAS ARRESTED AFTER THE PLEA BUT THE PROCEEDINGS WERE DISMISSED ON SPEEDY TRIAL GROUNDS AND THE RECORDS SEALED; THE POST-PLEA ARRESTS WERE THEREFORE A NULLITY AND SHOULD NOT HAVE BEEN CONSIDERED BY THE SENTENCING JUDGE (SECOND DEPT). ​
BECAUSE INDIVIDUAL CONDOMINIUM OWNERS ARE RESPONSIBLE FOR THE INSTALLATION OF WINDOW GUARDS, THE DEFENDANT CONDOMINIUM DID NOT HAVE A DUTY TO INSTALL WINDOW GUARDS; THEREFORE THE CONDOMINIUM COULD NOT BE LIABLE FOR PLAINTIFFS’ DAUGHTER’S FALL FROM THE WINDOW UNDER THE FAILURE-TO-INSTALL THEORY; HOWEVER, THE CAUSE OF ACTION BASED UPON THE CONDOMINIUM’S FAILURE TO GIVE PLAINTIFFS NOTICE OF THE CITY’S WINDOW-GUARD REQUIREMENT SURVIVED THE DISMISSAL MOTION (SECOND DEPT).

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