Barrera v. General Elec. Co.

• Decision Date: 01 December 1975
• Citation: 84 Misc.2d 901,378 N.Y.S.2d 239
• Parties: Tammy Ann BARRERA, an infant, by Joan Barrera, her parent and natural guardian, and Joan Barrera, Individually, Plaintiffs, v. GENERAL ELECTRIC COMPANY et al., Defendants.
• Court: New York Supreme Court

Page 239

378 N.Y.S.2d 239

84 Misc.2d 901

Tammy Ann BARRERA, an infant, by Joan Barrera, her parent and natural guardian, and Joan Barrera, Individually, Plaintiffs, v. GENERAL ELECTRIC COMPANY et al., Defendants.

Supreme Court, Special Term, Albany County.

Dec. 1, 1975.

Tate & Tate, Albany, for plaintiffs.

Donohue, Bohl, Clayton & Komar, Albany, for defendant General Elec. Co.

Carter, Conboy, Bardwell, Case and Blackmore, Albany, for defendant Carlos Barrera d/b/a Bonnie Doone Motel, Inc.

A. FRANKLIN MAHONEY, Justice.

The defendant, Carlos Barrera, moves for an Order pursuant to CPLR 3211(a) dismissing the first cause of action against him on behalf of the infant plaintiff and the derivative action of the infant's mother, on the ground that the plaintiffs have failed to state a cause of action. The factual issues are as follows.

On August 29, 1973 the infant was placed by his mother under the temporary care, custody and control of the child's grandfather, the moving defendant herein. While on his grandfather's premises the infant came into contact with a rotary ironer and sustained serious injuries.

The ensuing action and the subject motion raises the issue of whether the decision of the Court of Appeals (Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338), precluding tort claims against parents for alleged negligent supervision of a child, should be extended so as to immunize grandparents from such claims when they are exercising temporary custody and control of the infant. In my view, the principle of Holodook should be limited in its application solely to the parent-child relationship, and not extended to cover grandparents, uncles, aunts or any other relatives of an infant, excepting, of course, those instances where a relative assumes all the obligations incident to the parental relationship and thereby places himself in loco parentis to the child. None of the policy considerations expressed in Holodook warrants the extension of the tortless relationship of parent-child supervision. To the contrary, the Holodook court stated 'In most areas of tort law, the reasonable man standard well serves the law's general aim of structuring human activity in accordance with the community's understanding and expectations of proper conduct. In the family relation between parent and child, howeve we do not believe that application of this standardized norm is the wisest course. The result, we believe, would be to circumscribe the wide...