Wednesday, September 3, 2014

New York Court Declines to Label Wiffle Ball Bat a Lethal Weapon

Vintage Wooden Wiffle Ball Bat - Photo Credit: 
Schuh v. Hickis, 37 Misc.2d 477, 236 N.Y.S.2d 214 (N.Y.Sup., 1962)

What Happened?

Sandra Tasyn (14) was visiting relatives in New Hyde Park, New York on June 1, 1958.  She and her cousin went to the defendant Hickis' home, about a block away from her cousin's house, and began to play a Wiffle Ball game in his backyard.  

The plaintiff, Stephen Schuh (7), came over to the yard and joined in the game.  While Schuh was waiting for his turn to bat, Tasyn swung at the ball and the bat slipped from her hands, hitting Schuh in the face.  (Wiffle Ball bats were made of wood from 1955-1972!)  

Stephen Schuh's father sued on his son's behalf to recover for medical expenses and loss of services. Schuh claimed that Charles Hickis was responsible because he allowed the children to play in his yard and that Sandra Tasyn's parents should have followed her around and supervised her play.  

Both Hickis and the Tasyn's moved for summary judgement, asking the court to dismiss the case.

Who Won?

The court agreed with the defendants and granted summary judgment, dismissing the case.  The court also denied Schuh's motion to add Sandra Tasyn, who had since turned 18, as a defendant.

As to the Tasyn's, parents are not per se liable for the torts of their children, except under certain circumstances.  For example, if they were to have furnished Sandra with a gun, they could have been held liable for their own negligence in doing so.  In this case, however, the Tasyn's had nothing to do with the offending Wiffle bat and even if they did, "such ordinary instruments of play in the hands of a 14-year-old could scarcely be considered a lethal agency."

As to Hickis, the court found there was nothing wrong with the physical condition of the yard on which to predicate responsibility for this occurrence.  

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