SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION - SECOND DEPARTMENT
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STEVEN HINDERHOFER and ANNA HINDERHOFER,
the natural parents and guardians of STEVEN HINDERHOFER,
a minor under the age of eighteen,
Plaintiffs-Respondents,

CHRISTOPHER CALDERONE, a minor under the age of eighteen,
by his parent ROSEMARIE CALDERONE,
the natural parent and guardian of CHRISTOPHER CALDERONE,
ROSEMARIE CALDERONE, individually, MARIO CANNATA,
JOSEPHINE CANNATA,

Defendants-Respondents,

Non-parties designated as Respondents.
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The Index Number in the Supreme Court, Suffolk County is 2636/95.

The full names of the original parties are Steven Hinderhofer, Anna Hinderhofer, Steven Hinderhofer a minor, Daisy Manufacturing Inc., K-Mart Corporation, Christopher Calderone, Rosemarie Calderone, Mario Cannata, Josephine Cannata and James Waltel. There have been no changes in the parties to the action.

2A. CNA Insurance Company, Family Farm Insurance and Commercial Union Insurance, listed by Appellant are not parties to this action, but are parties to a companion declaratory judgment action under Suffolk County Index Number 9478-95, which is not before this Court.

The complaint was instituted in Supreme Court, Suffolk County.

The parties proceeded upon complaint.

The action was an action for personal injuries.

This is an appeal from an order of the Supreme Court, Suffolk County (Doyle J) entered July 7, 1999.

This appeal is purports to be on a full reproduced Record. Appellate Division Case Number is 99-07364.

This is an appeal from an Order where no minutes were taken.

TABLE OF CONTENTS

Counter Statement Pursuant to CPLR 5531 Counter Preliminary Statement Counter Statement of Facts The Action Companion Action 95-9478 The Complaint Theory of Liability The Accident James Waltel’s Audiogramme The Motion for Summary Judgement The Court’s Decision Counter Statement of the Questions Presented	ii 2 2 2 2 3 3 3 5 7 8 10
POINT: GIVING WEAPONS TO CHILDREN COURTS DISASTER. MR. WALTEL’S STATEMENT IDENTIFIES HIM AS THE PRIMARY MALEFACTOR Conclusion	11 18

BRIEF FOR PLAINTIFFS-RESPONDENTS

COUNTER PRELIMINARY STATEMENT

In a inter alia a personal injury action brought to recover damage for an accidental shooting, defendant James Waltel appeals from an Order of the Supreme Court, Suffolk County (Doyle J) entered July 7, 1999 which denied his motion for summary judgement.

COUNTER STATEMENT OF FACTS

THE ACTION - INDEX NO: 2636/95

In the late afternoon of November 28, 1994, Christopher Calderone shot Steven Hinderhofer Jr. in the eye with a BB gun. Action was commenced against inter alia Christopher Calderone, the shooter and James Waltel the provider.

COMPANION ACTION 95-9478

What began in agony continues in farce. The orphan parties CNA, Family Farm and Commercial Union, who have been placed in the caption, are not alleged to have caused the shooting. These insurers were never named as parties to the personal injury action (R23), commenced under Suffolk County Docket No. 95-2636, the subject of this appeal. CNA, Family Farm and Commercial Union are parties to a declaratory judgment action commenced under Suffolk County Index No. 9478/95. It seems that defendant Mario Cannata had allowed his insurance policy to lapse by failure to pay the premium. After the accident, defendant Mario Cannata reinstated the policy without disclosing the accident. In the declaratory judgement action that ensued, Mario Cannata argues various equitable concerns including his hospitalization when premiums were due as reasons for policy reinstatement notwithstanding the failure of payment.

The Supreme Court, Suffolk County has deferred consideration of a motion for summary judgement in the declaratory judgment Index No. 9478/95 until this appeal is concluded.

THE COMPLAINT

In the late afternoon of November 28, 1994, as 12 year old Steven Hinderhofer played a video game, his teenage friend, Christopher Calderone, fired a BB air rifle causing the pellet to lodge in Steven’s eye. The rifle was a Daisy Model, purchased for Christopher Calderone at K-mart by James Waltel. (R25-26).

THEORY OF LIABILITY

Consistent with the long-standing common law rule, action was commenced against James Waltel for having

(R33).

THE ACCIDENT

At 5:45 p.m. on November 28, 1994, the bullets whistled. Steven Hinderhofer, Jr., then a few days shy of his 12th birthday (R206) was playing a video game in Christopher Calderone’s bedroom. (R253). A few of Christopher’s teenage friends were horsing around in the room. (R254). There was an air rifle in the room openly on a rifle stand. (R256).

At a pause in the game, (R261), young Steven turned around. Christopher Calderone held the air rifle in his arms trained at the curling. (R262). Steven returned to the game (R268). When Steven turned to his right, (R270), Christopher had pointed the rifle at Steven. Steven stared down the deadly bore. (R271).

(R272).

With an accidental allusion to Major General Barry Goldwater’s famous quote, Steven defined the hole:

A puff of air blew into Steven’s face (R276). There was a loud popping sound “like a bottle of wine that had been opened,” (R271), but there was to be no celebration that night. Steven retched back in pain and fell on the bed.(R281). Christopher cried out, “It wasn’t loaded.” (R281).

The bullets whistled.

Removed by ambulance to the hospital, (R291), Steven was subjected to a series of operations to try to save the damaged right eye. (R217-222, passim). A gas bubble was implanted in the eye to flatten the retina. (R235). As of the time of the EBT, Steven was able to perceive the sensation of light and day in the right eye. (R223).

JAMES WALTEL’S AUDIOGRAMME

In a telephone message left on an answering machine after hours defendant Waltel admitted having gone to K-Mart to be present while the injury producing weapon was purchased.

THE MOTION FOR SUMMARY JUDGEMENT

Defendant moved for summary judgement on two theories: (a) lack of proximate cause and (b) pedestrian defense more commonly heard in the courts of criminal jurisdiction as the some-other-dude-done-it (SODI) defense. In response, plaintiff’s trial counsel responded:

THE COURT’S DECISION

Upholding the complaint, the court denied the motion in a memorandum decision by Justice Doyle:

In the indoctrination to the noble profession of bearing arms, the armed forces and the police departments of the United States take six to eight weeks of intensive weapons training to teach respect for the dangers of their devastating fire power. James Waltel didn’t take five seconds to say, “Be careful.” On this appeal defendant Waltel claims the injuries, the loss of a right eye, would not have been foreseeable by any measure and that his flagrant disregard for the rules of good sense should be excused for lack of proximate cause. Yet long before the legislature speaking the common wisdom of the electorate prohibited children from possessing BB guns, (Penal Law Secs. 265.05, 265.10 [5]), the courts in the English speaking jurisdictions recognized the unique perils assumed by one entrusting firearms to incompetents. Dixon v. Bell, 5 M&S 198 [Eng]. In the last analysis, though the weapon may be fired through accident, mishap or misadventure, “the test is not whether the injury accidentally inflicted but whether the defendant is free from blame.” Dixon v. Bell, 5 M&S 198. Thus contrary to appellant’s contentions on foreseeability and proximate cause, the law of the land emanating from the pre independence Dixon decision recognizes plainly the “destructive power” of weaponry (Anderson v. Settergren, 100 Minn 294, 111 NW 279) and the “high degree of care” in their handling. Gerbino v. Greenhutt, 165 App Div 763, 152 NY Supp 502. “Possession of … [weapons] place[s] the duty of exercising not simply ordinary care, but extraordinary care so that no harm might be visited upon others … Mr. Justice Gibson in Sullivan v. Creed, 2 (IR) KBD 317, 2 BRC 139 … appropriately [held] … ‘the greater the danger, the higher is the standard of diligence which the law expects.’” Kuhns v. Brugger, 390 PA 331, 135 A 2d 395, 403 cited approvingly on other grounds in LI Antique Gun v. Frank, 53 AD2d 644, 384 NYS2d 500. Logic, no less the common law restricts all persons from “placing [dangerous devices] in the hands of children …” Annon Dangerous Substances, 20 ALR2d 119, 123; Golembe v. Blumberg, 262 App Div 759, 27 NYS2d 692; Bucholtz v. Grimmer, 50 AD2d 1062, 376 NYS2d 277. For this reason, the authorities for at least two centuries agree that it is sheer “folly [to] plac[e] loaded gun[s] in the hands of the ignorant.” Travell v. Bannerman, 71 App Div 439, 75 NY Supp 866 rev’d on other grounds 174 NY 47, 66 NE 583 quoting Dixon v. Bell, 5M&S 198 [Eng]. He or she who suffers a minor access to weaponry, whether air rifles, B-B guns or the six shooter itself, courts the whirlwinds of fate and chances injury not only to the child in possession but also to others who may come in contact with the deadly child. Lichtenthal v. Gawoski, 44 AD2d 771, 354 NYS2d 267, 268. It is thus recognized negligence per se “to permit [a minor] to have [an] air gun … one who does laid himself open to the consequences.” Taylor v. Webster, 12 OH St 53, 231 NE2d 870, 873; Morrison v. Medaglia, 287 MASS 46, 191 NE 133, 134; Sojka v. Dlugosz, 293 MASS 554, 200 NE 554,556. “One responsible for permitting a child to have a gun or … acces[s] to [it] … has been considered prima facie negligent.” Annot 68 ALR2d 782, 786. The provider of the weapon risks “the likelihood that [the child entrusted] may act in a particular [reckless] manner … [that likelihood] is the hazard that makes the [provider] negligent.” Masone v. Gianotti, 54 AD2d 269, 388 NYS2d 322, 326. “A complaint [which] alleges negligence in placing a dangerous instrumentality in possession of [a minor], knowing that it could be used in a dangerous manner likely to cause harm to other … sets forth a valid cause of action … in common law negligence.” Lakomia v. Bankers, 35 AD2d 114, 312, NYS2d 1018, 1021, affd 31 NY2d 830, 339 NYS2d 680.

“Every [person] must be taken to contemplate the probable consequences of that act[s] he does.” Anderson v. Settergren, 111 NW supra at 280-281. The event is, by no means, so unlikely that no reasonably prudent person could have protected himself form the outset against in the dispatch of the extraordinary care in handling weapons. The authorities have long recognized the ‘magnetic” attraction of “firearms” which “overwhelm[s] boys [and girls] by an impulse the existence of which is known to adults and against which [defendant provider] should have taken precautions.” Kuhn v. Brugger, 135 A2d supra at 403-404. Neither lapse of time nor positive, but inadequate efforts of others to check or limit the danger created blurt out those potential hazards which and adult entrusting a minor with a weapon must contemplate in imprudent “us[e] in youthful sport or activity.” Henningson v. Markowitz, 132 Misc Rep 547, 230 NY Supp 313. The childish high jinx, reckless by an adult standard is foreseeable by any reasonably prudent adult standard from the outset, “an act which … defendant should have anticipated and guarded against,” Pudlo v. Dubiel, 273 MASS 172, 173 NE 536, 537; Semeniuk v. Chentis, 1 ILL App2d 508, 117 NE2d 883, 885; Poe v. Canton Dry Goods, 36 OH App 395, 173 NE 318, 321; Spies v. Goldberg, 26 GA App 530, 106 SE 585; Sickles v. Montgomery Ward, 6 Misc2d 1000, 167 NYS2d 977. “That one child [might point] a dangerous object [at] another” is tantamount to a declaration that one could not foresee how a pyromaniac might use matches. “Exactly what or whom he might harm or in what strange manner or how long it might take” is irrelevant. The tort feasor need not … “foresee the exact concatenation of events … ending in damage.” Kmart v. Keeler, 439 SO2d 283, 287, 288 (FLA App 1983). Yet pleads the defendant, Waltel, how could I have foreseen that five months later some horseplay by defendant Calerdone with that weapon would result in tragedy? Mr. Waltel’s question was answered by the President himself from the lectern in the halls of Congress.

While foreseeability is apparent, defendant Waltel would confound the definition of proximate cause to distill from it a requirement that the consequences unfold immediately or presently rather than that the result enare from an ever-present immediate danger. Proximate cause grants no such salvation to one who has set in motion the events that cause injury. Earsing v. Nelson, 212 AD2d 66, 629 NYS2d 563, 565. Indeed proximate cause does not mean the only cause. It means that defendant’s act “set in motion a chain of events. Several causes acting independently may contribute.” Pagan v. Goldberger, 51 AD2d 508, 382 NYS2d 549. An intervening cause, which would absolve defendant for the consequences of wrongdoing, is not merely some piece of the firmament, which makes up the devastating picture. It is an “extraordinary [event] not foreseeable in the normal course of [life] … [which] breaks the casual nexus.” Derdiarin v. Felix Contacting, 51 NY2d 308, 315, 434 NYS2d 166, 169. A supervening cause blurting out defendant’s original neglect must be “unforeseeable in the exercise of due care,” “new and unexpected and totally ‘independent’.” Sherman v. Millard, 144 MiscRep 748, 259 NY Supp 415, 422, 424. Defendant will remain liable if the consequence “refers to the original fault which set in motion … the injury …” Sherman v. Millard, 259 NY Supp supra at 422. Was then this accident so unique, so exquisite that no reasonable person could have foreseen and protected against it? Indeed, that tragedy may result from youth’s possession of a weapon has been documented in the reported cases in the courts of civil and criminal jurisdiction since Dixon v. Bell (Supra) and any ignorance which defendant Waltel may have of that potential consequence is purely feigned, blind eyed, self-delusion. Nothing in the picture attenuates or excuses the original fault. An adult handing a child a deadly weapon can foresee that a child may use it with childish lack of discretion and it is that childish indiscretion that the provider assumes the risk of. See Zeller v. Devaney, 155 Misc2d 534, 589 NYS2d 134, 136; see also Earsing v. Nelson, 629 NYS2d supra at 565. What appellant would do is ask the court to over-rule the salutary rule of Dixon v. Bell, (supra), a part of common law adopted at separation from Britain (NY Constit., Art I, Sec 14) and repeatedly reaffirmed by the courts of this and other states as the rule of guidance and enact a new and dangerous principle: that one who provides a weapon to a minor can proceed in blissful ignorance of danger and folly. If the logic of Dixon casting liability on one who foolishly put a weapon in the hands of an incompetent was apparent in a time when the gentlemen of the great manors commonly possessed private firearms, the recurring problem of accidental injury caused by weapons in the hands of fools has changed little the reason or rationale of Dixon. “Some acts … are imminently dangerous … as to impose a duty not from the prevision of an insurer.” CARDOZO CJ, in Palsgraph v LIRR, 249 NY 339, 162 Nor E 99, 59 ALR 1253. To overturn 200 years of consistent application of the Dixon rule encourages injury through folly. Appellant urges herein and in his answering machine call that the passage of time excused his folly. When appellant placed a weapon in the hands of a minor, he placed a time bomb, which would explode in the confluence of the wrong circumstances in the minor’s hands and Stephen Hinderhofer Jr’s face.

If part of Mr. Waltel’s question were answered by the president himself, this concern was addressed by the learned Chief Judge Cardozo:

But one might ask, if one were to hold Mr. Waltel liable, should not we hold also every person who encouraged children in the field of hockey, baseball, or soccer. Where would the victory at Waterloo and Trafalga have been if not for the playing fields of Eaton? Are not bats, sticks, pucks, and baseballs equally capable of a vicious use? There we reach an important difference everyone instinctively knows except perhaps Mr. Waltel in his somnambulant repose of blind, beknighted and blissful ignorance. The equipment of sport is capable of a proper use and consistent with the rules of the game. A weapon has but one purpose that is to kill or to maim. The bullets whistle to one end: death or serious injury. Furnishing a weapon to a minor is an act of a different universe from encouraging sport. It is to place the deadly wrath of the Lord Almighty in the hands of ignorance. Appellant tries to draw a distinction between being “the conduit” or the vessel of the sale of the weapon and being at one point a titled owner. Distinctions of title, according to the law of property, to the deadly weapon have not concerned the courts. Dixon v. Bell, (supra). The critical issue is whether the defendant provided the weapon.

On a motion for summary judgment, the opus probandi of the movant is to show no justiciable issue of fact. Andre v. Pomeroy, 35 NY2d 361, 262 NYS2d 131. In the context of a negligence case where the law often charts a torturous course in distilling the concepts of “reasonableness” and “prudence” (Havas v. Victoria Paper, 49 NY2d 381, 388, 426 NYS2d 233, 237; KASSAL J, dissenting in Meyers v. Fir Cab, 100 AD2d 29, 473 NYS2d 413, 417 rev’d on dissent 64 NY2d 806, 486 NYS2d 922), the onus probandi of the defendant movant is a demonstration of “exemplary prudence in the circumstances” or non-involvement in the accident as a matter of law. Ugarriza v. Schmeider, 46 NY2d 471, 475-476, 414 NYS2d 304, 306. To declare James Waltel’s acts in any respect as “extraordinarily prudent” would be a monumental declaration of folly to the English speaking world and hold this court up to public ridicule whenever the language of Chaucer is spoken. Lets now speak to Mr. Waltel’s claim of non-involvement. Just as appellant proposes a rule, which would protect a fool in his folly, appellant argues that, given the choice between two possible statements, the appellant tribunal should believe the Mr. Waltel of the EBT rather than the Mr. Waltel of answering machine fame. An extra judicial admission, made ante lite motam when the bullet whistle still rang, such as Mr. Waltel’s statement to the answering machine is compelling evidence in chief of Waltel’s complicity. Richardson, NY Law of Evidence [10th Ed, Prince ed] Sec 218, p 195 (1973), “The admission of a party in a civil or a criminal action ‘are always competent evidence against him [or her] wherever or to whomsoever made’”, (Fisch, NY Evidence Sec 791, p 495 quoting Nappi v Falcon Truck Renting, 286 App Div 123, 141 NYS12d 424 affd 1 NY2d 750, 131 NE2d 51) even to answering machines. Logic good sense and reason would dismiss the later exculpation, urged by appellant upon the court, as a mere recent fabrication. If this summary judgment should be granted, it should either partly or wholly be granted to respondent. Let not the bullets whistle; let the law be enforced against a proper target. Upon appeal this court which has the power to grant summary judgment to either side (CPLR 3212 [B]), should reject Mr. Waltel’s fanciful and feigned defense and instead grant summary judgment to the plaintiffs.

Respectfully Submitted,

JOHN F. CLENNAN, ESQ.

SCIBILIA, POLACCO & ALEDORT, ESQS. Attorneys for Defendant-Respondent Commercial Union Ins. 413 Hilton Avenue Hempstead, New York 11550 (516) 486-6500 AHMUTY, DEMERS & McMANUS, ESQS. Attorneys for Defendants Daisy Mfg. & K-Mart Corp. & Non-Party CNA Insurance 200 I.U. Willets Road Albertson, New York 11507 (516) 294-5433 HOBBES & TONNETTI, ESQS. Attorneys for Appellant James Waltel & Non-Party Family Farm Insurance 739 East Main Street Riverhead, New York 11901 (631) 369-0513 SWEETBAUM & SWEETBAUM Appellate Counsel to James Waltel 3000 Marcus Avenue - Suite 3W6 Lake Success, New York 11042 (516) 352-1922 JOEL ZIEGLER, ESQ. Attorney for Defendants Rosemarie Calderone, Mario Cannata & Josephine Cannata 199 East Main Street P.O. Box 829 Smithtown, New York 11787 (631) 265-2550 JOHN H. MULVEHILL, ESQ. Attorney for Defendant-Respondent Christopher Calderone 220 Cambon Avenue St. James, New York 11780 (631) 862-8889

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