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Personal injury action was brought against grandfather and against oncoming driver for grandchild's injuries in collision. The Supreme Court, Suffolk County, Jones, J., denied the grandfather's motion for partial summary judgment dismissing the claim against him based on his failure to attach his grandchild's seatbelt. Grandfather appealed. The Supreme Court, Appellate Division, held that: (1) the grandfather's failure to fasten the grandchild's seatbelt before operating the vehicle could be found to be a negligent act, and (2) in a unitary trial, the jury was required to determine the extent of liability of the grandfather, of the oncoming driver, and of the grandchild, if any, for the collision before determining the extent of damages attributable to the grandfather's failure to fasten the grandchild's seatbelt.

Order affirmed.

West Headnotes

[1] Parent and Child 285 11

285 Parent and Child
     285k11 k. Actions Between Parent and Child. Most Cited Cases
Principle that precludes tort claims against parents for alleged negligent supervision of child does not extend to immunize grandparent from such claims when he or she is exercising temporary custody and control of child.

[2] Automobiles 48A 181(1)

48A Automobiles
     48AV Injuries from Operation, or Use of Highway
           48AV(A) Nature and Grounds of Liability
               48Ak181 Liability of Private Owner or Operator to Occupant
                     48Ak181(1) k. Care Required and Liability in General. Most Cited Cases
Despite absence of statutory mandate requiring seatbelt usage at time of collision, grandfather's failure to fasten his grandchild's seatbelt before operating vehicle could be found to be negligent act and, therefore, grandchild could maintain separate claim of liability against grandparent.

[3] Trial 388 335

388 Trial
     388IX Verdict
           388IX(A) General Verdict
               388k335 k. Severance and Apportionment of Damages. Most Cited Cases
Jury was required to determine extent of liability of oncoming driver and of grandfather for collision and liability, if any, of grandchild, before jury could determine which of grandchild's damages were attributable to collision and which, if any, were attributable to grandfather's failure to fasten grandchild's seatbelt before operating vehicle.
**232 Pizzitola & Inzerillo, Commack (Vincent A. Malito, of counsel), for appellant.

Arye, Kors & Lustig, P.C., New York City (D. Carl Lustig, III, and Murray D. Kors, of counsel), for respondents.

Before THOMPSON, J.P., and BROWN, SPATT and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

*483 In an action to recover damages for personal injuries, etc., the defendant Torossian appeals from an order of the Supreme Court, Suffolk County (Jones, J.), dated February 25, 1987, which denied his motion for partial summary judgment dismissing the claim against him based on his failure to attach the infant plaintiff's seat belt.

**233 ORDERED that the order is affirmed, with costs.

On November 11, 1984, the infant plaintiff sustained serious personal injuries as a result of a motor vehicle accident which occurred when a vehicle driven by the defendant Vincent Marchese crossed over a double yellow line and collided with the vehicle driven by the infant plaintiff's grandfather, the appellant Robert Torossian, in which the infant was a passenger. The appellant moved for partial summary judgment dismissing so much of the complaint as alleged that he was affirmatively guilty of negligence for his failure to fasten the infant plaintiff's seatbelt. In reliance upon Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164, appellant alleged that evidence tending to show nonuse of a safety belt could only be considered by the jury to mitigate damages. The court denied his motion and held that the infant plaintiff has a direct claim of negligent supervision arising out of the appellant's alleged breach of duty of reasonable care in failing to fasten the child's seat belt. We agree.

[1][2] The principle that precludes tort claims against parents for alleged negligent supervision of a child does not extend to immunize a grandparent from such claims when he or she is exercising temporary custody and control of the infant ( Broome v. Horton, 53 A.D.2d 1030, 386 N.Y.S.2d 156; see also, Zalak v. Carroll, 15 N.Y.2d 753, 257 N.Y.S.2d 177, 205 N.E.2d 313). The infant plaintiff offers evidence that his seat belt was not fastened in an effort to show a breach of this custodial duty by the appellant grandfather, rather than as in Spier where the evidence was offered by the defendant to hold the plaintiff liable for his own culpable conduct. Despite the absence of a statutory mandate requiring seat belt usage at the time of the accident, the failure to fasten the infant's seat belt prior to operating the vehicle may be found to be a negligent act. Under these circumstances, where the infant plaintiff is asserting a separate claim of liability against the custodial driver of the vehicle, the claim should be allowed to stand (see, Curry v. Moser, 89 A.D.2d 1, 454 N.Y.S.2d 311).

[3] However, under the peculiar facts alleged herein, the claim for negligent supervision is separate from the claim arising from the collision of the two automobiles. In a unitary trial, the jury must first determine the extent of liability of each of *484 the two driver defendants for the collision and of the infant plaintiff, if any. The jury must then determine if the appellant was negligent in his supervision of the infant plaintiff. If there is such a finding of negligence, the jury must determine which of the infant plaintiff's damages, if any, were attributable to the collision and which, if any, were attributable to the failure to supervise.

N.Y.A.D. 2 Dept.,1988.
Costello by Hines v. Marchese
137 A.D.2d 482, 524 N.Y.S.2d 232

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