Conboy v. Mogeloff

172 A.D.2d 912, 567 N.Y.S.2d 960 (App. Div. 1991)



A legal duty is essential to a recovery in negligence. As a general rule, a defendant has no legal duty to control the conduct of the third persons so as to prevent them from harming others. However, certain relationships may give rise to such a duty, but then only when the defendant has the ability and authority to control the third persons' conduct.


The physician prescribed the mother Fiorinal and advised she could drive an automobile. The mother subsequently operated an automobile occupied by her three children and collided with a bridge abutment. In the guardian ad litem's negligence and malpractice action, the trial court denied the physician's motion for summary judgment. On appeal, the court reversed.


Can the physician be held responsible for the accident that happened after prescribing medicine and even advising the mother that she could drive?




The court held that the physician did not have sufficient ability and authority to control the conduct of the mother so as to give rise to a duty to protect the children. The court stated that the mother was free to accept or reject the diagnosis and that the advice did not equate to control. The court further stated that the guardian ad litem did not allege the children relied on the physician's conduct or the physician had knowledge of any reliance.

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