Broome v. Horton

• Court: United States State Supreme Court (New York)
• Writing for the Court: LYMAN H. SMITH
• Citation: 83 Misc.2d 1002,372 N.Y.S.2d 909
• Parties: Shawn 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 Date: 18 September 1975

Page 909

372 N.Y.S.2d 909 83 Misc.2d 1002 Shawn 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. Supreme Court, Yates County. Sept. 18, 1975.

Page 910

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

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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...