638 N.Y.S.2d 878 (N.Y. Sup. Ct. 1995)
PROCEDURAL HISTORY: Plaintiff victim was blinded in one eye by an egg thrown from a moving vehicle owned by defendant owner. The victim brought an action against the owner, claiming that the owner was vicariously liable for the negligence of the driver and/or passenger, under N.Y. Veh. & Traf. Law § 388. The victim brought a motion for summary judgment, and the owner brought a motion to dismiss the complaint.
-May 20, 1994 accident wherein the plaintiff, a pedestrian, was blinded in one eye by an egg thrown from a moving automobile owned by defendant Eugene Peluso and permissively operated by defendant Patrick Peluso in which defendant Russell DiBenedetto was a passenger.
-The sole basis of liability alleged against defendant Eugene Peluso is Vehicle and Traffic Law § 388 which imposes vicarious liability against the owner of a motor vehicle for injury resulting from negligence in its permissive use or operation.
The court noted that the statute imposed civil liability upon a car owner, where the negligent use or operation of the car by another resulted in death or injury. Further, the court noted that the phrase "use or operation" required that: 1) the accident, from which the death or injury resulted, arise out of the inherent nature of the car; and 2) the car must not have merely contributed to accident, but must have been a proximate cause thereof.
In the instant case, the court held that the owner was not vicariously liable for the actions of the driver and/or passenger, because the victim's injury did not arise out of the use or operation of the car. Rather, the victim's injury was caused by the independent act of the throwing of the egg.
CONCLUSION: The court denied the victim's motion for summary judgment, and granted the owner's motion to dismiss the complaint.
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