After spending an afternoon smoking marijuana, five teenagers transitioned to other activities and a fifteen-year old, named Harley Courts, eventually wound up taking a paintball to the eye.

Harley’s parents, acting on his behalf, filed suit in New York County Supreme Court against the parents of Eric Gushee -- in whose apartment the shooting had taken place -- claiming negligent supervision of the teens.

The Gushees then sued Vincent DiPilato, the trigger-happy 19 year old, for contribution and/or indemnification.

Shortly thereafter, Harley’s parents filed a second case, this time against Eric Gushee, for negligently permitting DiPilato to fire the paintball gun.

When the Gushees requested the case's dismissal, the New York County Supreme Court found there was no duty imposed upon a minor to supervise a nineteen-year old and granted the request as against the Gushees’ child.

While parents are generally not responsible for their children’s torts, “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.”

Under New York law, a paintball gun is classified as an “air gun” and, unless used in an “entertainment facility,” an individual under the age of sixteen can’t own or possess one. Accordingly, the court concluded that, by purchasing the paintball gun and then giving it to their son, the Gushees were negligent as a matter of law, and the only remaining question was whether that violation triggered Harley’s injuries.

Since several questions remained unanswered, including whether the DiPilato’s actions as “an adult” absolved the Gushees from liability, the case against the Gushees was permitted to continue.

Three guesses who wasn't gushing over that.

To download a copy of the Supreme Court's decision, please use this link: Courts v. Gushee

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (1)

Some cases are just plain bizarre. And, Matter of David H. is a prime example. In this particular dispute, a Family Court Judge adjudicated a child a "juvenile delinquent" for the unlawful possession of an air pistol.

In the City of New York, the unlicensed sale or possession of an air pistol, air rifle or similar instrument--in which the propelling force is a spring or air--is unlawful. [See New York City Administrative Code section 10-131(b) and New York City Administrative Code section 10-131(g)(1)(a). Many villages, towns, cities and counties throughout our great state do not have comparable restrictions.]

On appeal, the Appellate Division, First Department, reversed and dismissed the case in the absence of conclusive evidence that the child was ever in possession of the air pistol. As the Court observed:

On the possession issue, the evidence established only that a teacher saw appellant inside a closet area "flipping the top of his pants out a little" so that another student could not look in; [the teacher] was unable to see what, if anything he had in his pants. At some point thereafter--the record does not indicate how long thereafter--a school safety agent saw appellant in an adjoining classroom standing near a group of lockers. One of the lockers was "kind of cracked open" and the agent found the air pistol in that locker when he opened it. The agent did not see appellant put anything into the locker nor was there any evidence the locker was assigned to appellant. The evidence established only proximity to, not possession of, the air pistol.*

And our Mayor is worried about youngsters taking their cell phones to school?

In the wake of school shootings throughout our country, we need to ensure that students are discouraged from carrying weapons--particularly onto school property--and must send a clear message that this type of illegal conduct will not be tolerated. Unfortunately, the outcome of this case fails on both counts. While the Appellate Division cut young "David H." a break, the safety and security of everyone entrusted to our school system must remain of paramount importance to us all.

For a copy of the Appellate Division's decision in Matter of David H., please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_05091.htm

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*Unfortunately, the decision is conspicuously silent as to whether other evidence--such as fingerprints--pointed to young David's "possession" or "control" of the air pistol.

Posted by Daniel Finkelstein, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

With the Labor Day holiday weekend fast approaching, many are wondering how the recently enhanced airport security procedures are impacting air travel. I am pleased to report that the process is not as bad as you might expect.

Just a few days ago, I caught a flight out of Newark, New Jersey, to Fort Lauderdale, Florida. Although there were certainly delays getting past the security checkpoints--since screeners are vigilantly inspecting all carry-ons and confiscating all types of liquids, gels, lotions and other comparable items--all in all, the process went quite smoothly.

Things are certain to go a lot quicker as travelers get acclimated to the new restrictions. According to the U.S. Department of Homeland Security's Transportation Security Administration (TSA), here are the only liquid- or gel-based substances currently permitted aboard aircraft:

small amounts of baby formula and breast milk if a baby or small child is traveling;
liquid prescription medicine with a name that matches the passenger's ticket;
up to 5 oz. (148ml) of liquid or gel low blood sugar treatment;
up to 4 oz. of essential nonprescription liquid medications including saline solution, eye care products and KY jelly;
gel-filled bras and similar prostethics;
gel-filled wheelchair cushions; and
life support and life sustaining liquids such as bone marrow, blood products, and transplant organs carried for medical reasons.

All other liquid- or gel-based items will not be allowed past the security checkpoints, so don't bother taking take them with you. (You'll avoid needless delay, a humiliating bag search, and disparaging looks from TSA personnel and fellow travelers.)

If you just can't leave home without your billy clubs, black jacks, brass knuckles, jubatons, mace/pepper spray, martial arts weapons, night sticks, nunchakus, stun guns/shocking devices, and throwing stars, you may want to store those items in your checked baggage. (They will not be permitted in carry-ons nor otherwise allowed in the cabin.)

In addition to your self defense weaponry, you may also want to check your "'tude" when interacting with the cabin crew. As a result of legislation signed by President George W. Bush, back in December of 2003, certain flight crew members are now permitted to carry firearms to defend against "criminal violence or air piracy." (Currently, only a pilot, flight engineer or navigator are permitted to pack a pistol.) While your friendly flight attendant, on the other hand, is likely to have been schooled in an array self defense techniques that can do some real damage to your person. (Interestingly, since the government views the details regarding the self defense program as "protected critical infrastructure information," and as "sensitive security information," training specifics are not publicly available. Additionally, all training participants are required to sign a three page "non-disclosure agreement," that would make any lawyer proud. As you might expect, a violation of the agreement subjects the discloser to, among other things, "administrative, disciplinary, civil or criminal action, as appropriate.")

So, the next time you're imperiously instructed to "return to your seat and fasten your seatbelt," it may be best to do so quickly and obediently...if you know what's good for you.

Happy trails!

For a complete list of "Permitted and Prohibited Items," promulgated by the U.S. Department of Homeland Security, Transportation Security Administration (TSA), please click on the following link:
http://www.tsa.gov/travelers/airtravel/prohibited/permitted-prohibited-items.shtm

For information regarding the TSA's "Federal Flight Deck Officers' Program," please click on the following link:
http://www.tsa.gov/lawenforcement/programs/ffdo.shtm

For information regarding the TSA's "Crew Member Self Defense Training Program," please click on the following link:
http://www.tsa.gov/lawenforcement/programs/self_defense_cmsd_programs.shtm

For a copy of the TSA's "Non-Disclosure Agreement," please click on the following link:
http://www.tsa.gov/assets/pdf/DHS_Form_11000-6_NDA.pdf

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NOTE: On September 26, 2006, after this piece was originally posted, TSA eased its prohibitions and now permits certain liquids, gels and lotions aboard aircraft, subject to certain size and packaging requirements. To view this updated information, please visit TSA's website using the first link provided above.

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (4)