Lastowski v. Norge Coin-O-Matic, Inc.

Shapiro, J. The issue in this case was spawned by Dole v. Dow Chem. Co. (30 N Y 2d 143) and Gelbman v. Gelbman (23 N Y 2d 434). Basically the question is: Does lack of supervision of an unemancipated child by his parents, as a result of which he is injured, constitute an actionable tort? We answer that question in the negative. THE PLEADINGS AND THE DECISION AT THE TRIAL TERM. The infant’s father brought this action to recover for the injuries suffered by his infant son, aged four years,1 when he was struck by a motor vehicle driven by defendant Price and owned by defendant Norge Ooin-O-Matie, Inc. (Norge). The father also seeks recovery for his own medical expenses and [128] the loss of the services and companionship of his infant son. The accident happened on a public highway. The defendants, in their amended answer, asserted a counterclaim which alleges that the infant’s damages were due to the negligence ofi the father in failing to supervise the infant in an area traversed by motor vehicles, and they therefore ask for an apportionment of the liability ¡between themselves and the father if they are held liable on the infant’s cause of action. The plaintiffs orally moved to dismiss the counterclaim, but the Trial Term ruled that it stated a valid cause of action. The plaintiffs appeal, contending that the counterclaim is insufficient as a matter of law, because it fails to state that the infant ‘ ‘ was in need of unusual supervision or that he was in some way mentally or physically disabled.” We agree with the plaintiffs’ contention that the counterclaim is insufficient as a matter of law, but not upon the ground urged by them. In accord with the only three appellate court decisions on that subject which we have been able to find in the State (Holodook v. Spencer, 43 A D 2d 129 [3d Dept.]; Graney v. Graney, 43 A D 2d 207 [3d Dept.]; Ryan v. Fahey, 43 A D 2d 429 [4th Dept.]) we hold that in this State and under the circumstances of this case there is no tort liability on the part of a parent for negligent failure to properly supervise an unemancipated child. THE LAW The counterclaim in this case is based on the decision in Dole (30 N.Y 2d 143, 148-149, supra), in which the Court of Appeals made new law when it decided that “ where a third party is found to have been responsible for a part, but not all, of the negligence for which a ¡defendant is cast in damages, the responsibility for that part is recoverable by the prime, defendant against the third party ” and that “ to reach that end there must necessarily be an apportionment of responsibility in negligence between those parties ”. To .get under the umbrella of that case the defendants, in their counterclaim, allege that the plaintiff father was guilty of negligence, because he failed to properly supervise his infant son at the place where the latter was injured. My learned brother ¡Justice Hopkins and I agree that if the counterclaim states a cause of action it is only because there is a recognizable tort of failure to supervise, which, under the facts here, could give rise to an action directly by the infant against his parents for the injuries he sustained in the instant accident. Justice Hopkins, in his erudite dissent, concludes that there [129] is such a tort and that the removal of the bar against intrafamilial suits by Gelbmam v..Gelbmam (23 N Y 2d 434, supra) sanctions the counterclaim here interposed. I do not agree. Absent binding precedents in this State establishing the existence of ,a cause of action in tort for injuries sustained by an unemancipated child arising from inadequate parental supervision (and I have found none), we are faced with the need to determine whether as a matter of public policy we should now judicially create such a cause of action. That parents owe a moral duty to their children which flows from what Judge Lewis in Cannon v. Cannon (287 N. Y. 425, 427-428) described as “that natural kinship between parent and child ” is beyond question. Discussing that duty, Judge Lewis said (pp. 428-429): “ The law requires of parents that they provide care, maintenance and guidance for their unemancipated minor child. To that end they are entitled to his custody. Such duties and rights may be enforced by legal process. Thus has the law recognized in the family something more than a social unit, something more practical than a spiritual concept. It has sanctioned the family relationship—particularly the relationship of parent and child — as the basis for regulating those reciprocal obligations between parent and child which may be the subject of legal enforcement. “ In the process of rearing a child and the fulfillment of the legal duties of care, maintenance and guidance, the conduct of the parents toward the child is of necessity affected by the parental relation. We know that family unity is not created by law. But, as we have seen, the law does not fail to recognize family unity as a factor in human conduct and relationship. As to the child—what he may expect from his parents and what he owes to them as a matter of filial duty differ widely from his rights and duties in his relations to those not in loco parentis. As to the parents — the law which imposes upon them the duty to support and discipline a minor child, and to prescribe a course of conduct designed to promote his health, education and recreation, accords to the parents a wide discretion. In the exercise of that discretion and the performance of duties imposed by law through no choice by the parents, they are held to no higher standard of care than the measure of their own physical, mental and financial abilities to provide for the well-being of their child. Lack of means, physical weakness or mental incapacity may cause parents to tolerate conditions in the family home which are unsafe and which might afford a basis for liability to one coming to the premises as an [130] invitee or licensee. Not yet, however, have onr courts granted an unemancipated child—whom the law decrees to be a member of that household—the right to hold this parents in damages for unintended personal injuries resulting from such conditions. Indeed, if within the wide scope of daily experiences common to the uphringi/ng of a child,a parent'may be subjected to a suit for. damages for each failure to exercise care commensurate with the risk—for each injury ¡caused by inattention, unwise choice or even selfishness — a new and heavy burden will be added to parenthood ” (emphasis supplied). In Badigian v. Badigian (9 N Y 2d 472) a mother brought an action against her husband on behalf of their three-year-old child. She alleged that her ¡husband had negligently left the family automobile unlocked in a parking lot and that the child released the brakes and was hurt when he tried to jump from the vehicle. In writing for the court (Judge Fuld [later Chief Judge], dissenting), Chief Judge Desmond said (p. 473): “ There is no decision in any American or English appellate court sustaining such a cause of action as is here alleged”. In his dissent, Judge Fuld pointed out (,p. 474): “ If the present decision were necessary tc preserve the integrity of the family, I would subscribe to it. But I do not believe that it is ”. He then said (pp. 474-475) that “ to deny redress in automobile negligence cases, is wrong in principle and at odds with justice and modern-day realities ” and that (p. 478) “ we should hold that the child is not to be denied the benefit of insurance that would be available for a stranger ”. He then reasoned (p. 479) : “ Certainly, where there is insurance, it becomes more difficult to justify the stock arguments advanced against recovery, to say that recognition of a right of action destroys our concept of the family unit. Gone is the fear of impoverishing the family, of impairing parental discipline or of disrupting domestic harmony. The child’s ¡suit, if successful, will provide a fund to care for its injuries which .might otherwise be unavailable. Far from upsetting family ties, the suit is actually an incident in the course of a family’s provident management of' its affairs. (See, e.g., Dunlap v. Dunlap, 84 N. H. 352, 368, supra.) ” The rationale of his dissent was that the plaintiff’s cause of action would not tend to destroy the ‘ ‘ integrity of the family ”. Tested by that yardstick we are compelled to conclude that permitting automatic lawsuits or, as in this case, an automatic counterclaim on the basis of an allegation of failure to supervise would have the very effect (the disruption of the family unit) which Judge Fuld said would motivate him to agree with the majority in Badigian (supra). In Gelbman v. [131] Gelbman (23 N Y 2d 434, 437-438, supra),2 the court (per Burke, J.) adopted “ the convincing arguments advanced by Judge Fuld in his comprehensive dissent in Badígián ”, but was careful to point out that ‘ ‘ the present litigation is, in reality, between the parent passenger and her insurance carrier ” and that “ viewing the case in this light, we are unable to comprehend how the family harmony will be enhanced by prohibiting this suit ” (last emphasis supplied). Judge Burke meticulously emphasized (p. 439) the court’s unanimous conclusion that “ by abolishing the defense of mtrafamilial tort immunity for nonwillful torts, we are not creating liability where none previously existed. Rather, we are permitting recovery, previously denied, after the liability has be.en established ” (emphasis supplied). Thus Gelbman, in erasing the ban against intrafamily suits, did not create a cause of action based upon lack of parental supervision. That as a matter of public policy we should not now strain to create such a cause of action is more than made evident by the ingenuity which has been exhibited in the multifarious kinds of counterclaims which have been interposed in the cascade of recently reported cases. Their nature and extent3 [132] make it manifest why the counterclaim interposed in this case should not he sustained. Other examples of causes of action which could be asserted if lack of parental supervision is deemed to be a valid cause of action readily come to mind. A mother is bathing two-year-old Jane in the bathtub. Jimmy, age three, is cavorting around in the kitchen. He comes upon a box of matches which the mother absentmindedly has left within his reach. He starts a fire in which he is badly burned and the home and its contents are destroyed. If Gelbman (supra) has opened the door to a lawsuit against a parent to recover damages for lack of parental supervision, the mother would face the following lawsuits: (a) by Jimmy to recover for his injuries, (b) by the father to recover his medical expenses, etc., in caring for Jimmy and for the damages occasioned to his property and (c) by the landlord for the damages to his real estate. Another commonplace occurrence is one in which a child climbs on a chair, opens a medicine chest and ingests iodine or some other poisonous substance.4 Is the mother to be Cast in damages [133] in a suit by the child grounded on the theory of lack of super-, vision? And if the parents are engaged in matrimonial litigation is the mother — at the behest of the father in a suit brought on behalf of the infant — to be compelled to engage counsel and defend herself in a negligence action the basis of which is mere failure to supervise? Of . if a child-of tender years is permitted, unattended, to ride a bicycle on the sidewalk and falls off and injures himself, is his mother to be subject to a lawsuit by him and his father ? Other examples, too numerous to mention, and not beyond the ingenuity of counsel to maintain, could readily be cited. To permit the institution of such lawsuits, thereby subjecting a parent or parents to the burden of engaging and. paying counsel, with a resulting possible liability, on a mere allegation that they failed sufficiently to supervise their child against injury would only encourage second-guessing the propriety of the every-day actions of a parent. Recognition of such a cause of action, on the basis of Gelbman and Dole (supra), would adversely affect family unity by creating a direct conflict of interest between the injured child plaintiff and his parents in any action for negligence they might institute on his behalf. In prosecuting such a lawsuit they would subject themselves to the possibility of having to defend a counterclaim (with its resultant legal costs) and in addition they would face the possibility of having to pay part of the recovery obtained by the child. As Professor David D. Siegel, in his Practice Commentaries on CPLR 3019 (McKinney’s Cons. Laws, of N. Y., Book 7B, CPLR [03019:42, p. 246]) succinctly pointed out: “ The result, if such a claim were sustained, is that the parents would have to pay out of their own pockets whatever portion of the liability was found to be theirs. The infant’s claim would technically be undiminished. He would [134] . get Ms full recovery against the named defendant, who would then get pro rata recovery against the parents for their Dole share. As a practical matter, however, this could have repercussions detrimental to the infant, diminishing the force with wMch Ms action, controlled or in any event substantially influenced by Ms parents, is prosecuted. Significantly, it could create internal family trouble, quite at odds with anything Gelhman intended. Suppose, for example, that the Dole judgment bankrupts the parents. If it threatens them with insolvency, they may go to desperate lengths to get their hands on their own child’s money, which is ordinarily beyond their legal reach. See ÜPLB 1206, 1210. Surely neither Gelbman nor Dole intended that.” Footnotes [1] Although the complaint and answer do not state the age of the infant plaintiff, both the plaintiffs’ and the defendants’ briefs assert that he was four years old at the time of the accident. [2] Gelbman was a suit by a parent against her 16-year-old son for injuries she suffered when an automobile driven by him in which she was a passenger collided with another vehicle. Thus, if it were not for the mtrafamilial immunity doctrine, she would clearly have had a cause of action against the driver and owner of the car in which she was riding if the accident was in any respect due to her son’s negligence, just as she would have had a cause of action against the driver of the other car if there had been negligence by him. If the accident had occurred after Bole, the driver of the other ear, if sued by Mrs. Gelbman, would have had a third-party claim against the son. But we do not here deal with situations like Gelbman which involve conduct by a defendant who is a member of the same family as the injured plaintiff, which conduct, if performed against a person outside the family, would have subjected the actor to a suit for tort. Bather, we deal here solely with whether a claim for injuries resulting from a parent’s negligent supervision or control of his children states a cause of action. [3] The following cases involved the question before us: Holodook v. Spencer (43 A D 2d 129); Searles v. Dardani (75 Misc 2d 279); Marrero v. Just Cab Corp. (71 Misc 2d 474); Collazo v. Manhattan & Bronx Surface Tr. Operating Auth. (72 Misc 2d 946); Fake v. Terminal Hardware (73 Misc 2d 39); Hairston v. Broadwater (73 Misc 2d 523); and Miller v. Cross (75 Misc 2d 940), all of which involved child pedestrians injured while on the street or public highway; Kiernan v. Jones (73 Misc 2d 829); and Sorrentino v. United States (344 F. Supp. 1308), which involved children injured while allowed by their parents to ride bicycles on the public highway; Salley v. Weiss (74 Misc 2d 619); and Morales v. Moss (44 A D 2d 687 [decided herewith]), both of which involved infant plaintiffs injured by ingestion of poisonous paint chips and flakes in their parents’ apartments; Ryan V. Fahey (43 A D 2d 429); and Northrop v. Hogestyn (75 Misc 2d 486), each of which involved a cross [132] claim by a defendant against the injured infant’s parent based on allegations that negligent parental supervision contributed to the infant’s injuries. The cases of Bilgore v. Rennie (72 Misc 2d 639), involving a child injured while riding an allegedly defective bicycle suing the seller of the bicycle; Meade v. Roberts (71 Misc 2d 120), involving a child injured in a two-car collision while a passenger in a car driven by its parent; and Orphan v. Relyea (73 Misc 2d 1098), involving a child injured in an explosion resulting when his father lit the heater in the family sauna, are all cases where any parental liability that may exist would flow from an affirmative negligent act of the parent which would subject him to liability to anyone injured thereby, not from any failure to carry out his parental duty of supervision and control of his child. [4] That cases of child poisoning resulting from parental lack of supervision do not present isolated occurrences is made more than manifest by the figures we have obtained from the Department of Health of the City of New York. They show the following: Cases of poisoning reported in 1971 by age and poisoning agent [133] Cases of poisoning reported in 1972 by age and poisoning agent