Broome v. Horton

Citation83 Misc.2d 1002,372 N.Y.S.2d 909
PartiesShawn BROOME, an infant, by Lois Broome, his parent and legal guardian, and Lois Broome, Plaintiffs, v. Cecil HORTON and Barbara Horton, Defendants. Cecil HORTON and Barbara Horton, Defendants and Third-Party Plaintiffs, v. Lytle LINDSTROM and Juanita Lindstrom, Branchport, New York, Third-PartyDefendants.
Decision Date18 September 1975
CourtUnited States State Supreme Court (New York)

Bond, McDonald & Toole, Geneva, for defendants and third-party plaintiffs.

Taylor & Taylor, Penn Yan, for third-party defendants.

MEMORANDUM--DECISION

LYMAN H. SMITH, Justice.

Does the recent 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 of a Non sui juris child for alleged negligent supervision, immunize the child's grandparents from such claims when they are exercising temporary custody and control of the infant?

This court answers the question in the negative. The rationale of Holodook will not apply, with equal force, to protect grandparents from claims of inadequate supervision of their grandchildren. Third-party defendants' motion to dismiss the second amended third-party complaint for failure to state a cause of action (CPLR Rule 3211(a)(7)) is hereby denied. The salient facts which prompt the foregoing determination appear as follows:

The infant plaintiff, while spending the afternoon of July 1, 1973 with his maternal grandparents at the home of his aunt and uncle, was seriously injured when bitten by the aunt and uncle's dog. Action has been brought by the infant's mother, both on his behalf and in her own right, against the aunt and uncle for their purported negligence in permitting the dog, allegedly known to be vicious (the animal having bitten another child on a former occasion), to run at large and unmuzzled.

The child's aunt and uncle now bring a third-party action against the child's maternal grandparents seeking Dole-Dow contribution. 1 They allege that the grandparents negligently supervised the infant in that they failed to warn him of the potential dangers presented by the dog's vicious nature and failed to keep the child from the dog (which, concededly, was chained) by either confining or restraining the infant, or by placing some barrier between him and the animal. It is this third-party complaint which the defendant grandparents ask this court to dismiss on the basis of the Holodook decision.

The issue, framed as it is, poses a novel query: Is there a cause of action in tort for the negligent supervision of an unemancipated infant by a child's grandparents, when such supervision results from a temporary custodial obligation rather than from an In loco parentis relationship?

As above indicated, under the circumstances here, the grandparents urge this court to extend the rationale of Holodook. They do not suggest that grandparents may never be held liable for injuries sustained by a grandchild arising from other variant types of non-willful negligence. Such a broad assertion would, of course, be without merit. See, 59 N.Y.Jur. 'Torts', § 34; also see, Spaulding v. Mineah, 239 App.Div. 460, 268 N.Y.S. 772, aff'd. 264 N.Y. 589, 191 N.E. 578. 2 But, they do contend that, when charged with supervisory responsibility of and custody of the infant, albeit temporarily, they must stand In loco parentis to their grandchild--free, as the child's parents, from legal censure.

In passing, it must be noted, that Holodook was narrowly confined to claims of alleged negligent supervision and was restricted, in its application, only to parents of an infant child. Thus, the clear issue presented here is whether the grandparents of an infant can similarly avail themselves of the parental immunity enunciated in Holodook, especially when charged with identical negligence, i.e., lack of supervision.

The answer to this issue prompts a hard look at Dole v. Dow, wherein we find the well-spring of contribution among joint tort-feasors and, similarly, the seeds of comparative negligence that have bloomed (September 1, 1975) under Article 14--A of the CPLR. Both Dole v. Dow and Article 14--A must be viewed in the light of the concern expressed by the Court of Appeals in Holodook; that family harmony be not jeopardized with the advent of new actions brought on behalf of infants against their parents.

In Holodook, the Court of Appals consolidated and upheld the decision of two appellate departments, 3 and cited with approval the leading opinion of a third appellate department, 4 finding that there has never existed, in our state, a cause of action in tort against parents of an unemancipated child for negligent supervision. Thus the Court held that no Dole-Dow contribution may be recovered in third-party actions against the alleged supervisory failure of parents.

Emphasizing its main concern to be '* * * the potential impact of Dole apportionment and contribution upon the fundamental family relations Between parent and child' (Holodook, supra, 36 N.Y.2d at p. 45, 364 N.Y.S.2d at p. 867, 324 N.E.2d at p. 343, emphasis supplied), the Court of Appeals stated several policy considerations which prompted its refusal to create a cause of action for negligent parental supervision. However, none of these policy considerations is supportive of the present proposal to extend Holodook to the grandparents of the infant child herein.

Of prime concern to the Holodook Court was the possibility of family strife and discord, should a child sue his parents.

If the parents were uninsured, the Court feared that the parents would be reluctant...

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10 cases
  • Convery v. Maczka
    • United States
    • Superior Court of New Jersey
    • October 30, 1978
    ...Brown v. Knight, 362 Mass. 350, 285 N.E.2d 790 (Sup.Jud.Ct.1972) (liability of summer school proprietor); Broome v. Horton, 83 Misc.2d 1002, 372 N.Y.S.2d 909 (Sup.Ct.1975) (liability of grandparents); Roche v. St. John's Riverside Hospital, 96 Misc. 289, 160 N.Y.S. 401 (Sup.Ct.1916), aff'd ......
  • Cox v. Malcolm
    • United States
    • Court of Appeals of Washington
    • April 18, 1991
    ...901, 378 N.Y.S.2d 239 (1975) (infant in grandfather's care injured after coming in contact with rotary ironer); Broome v. Horton, 83 Misc.2d 1002, 372 N.Y.S.2d 909 (1975) (infant under grandparents' supervision bitten by dog); Crowley v. Spivey, 285 S.C. 397, 329 S.E.2d 774 (Ct.App.1985) (m......
  • Bartels v. Westchester County
    • United States
    • New York Supreme Court Appellate Division
    • July 7, 1980
    ...Under these circumstances, the relationship of in loco parentis does not exempt the appellants from liability (Broome v. Horton, 83 Misc.2d 1002, 372 N.Y.S.2d 909, affd. 53 A.D.2d 1030, 386 N.Y.S.2d 156; Barrera v. General Elec. Co., 84 Misc.2d 901, 378 N.Y.S.2d 239; cf. Rapisarda v. Banco,......
  • Adolph E. by Susan E. v. Lori M.
    • United States
    • New York Supreme Court Appellate Division
    • October 5, 1990
    ...v. Carroll, 15 N.Y.2d 753, 754, 257 N.Y.S.2d 177, 205 N.E.2d 313; Broome v. Horton, 53 A.D.2d 1030, 386 N.Y.S.2d 156, affg. 83 Misc.2d 1002, 372 N.Y.S.2d 909; Barrera v. General Elec. Co., 84 Misc.2d 901, 378 N.Y.S.2d 239). Here, the complaint alleged that defendant, who was entrusted with ......
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