Fekete v. Schipler, No. A--424

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: SULLIVAN
• Citation: 80 N.J.Super. 538,194 A.2d 361
• Docket Number: No. A--424
• Decision Date: 16 October 1963
• Parties: Deborah FEKETE, an infant by John Fekete, her guardian ad litem; and John Fekete, individually, Plaintiffs-Appellants, v. Sol SCHIPLER, Defendant-Respondent.

Page 538

80 N.J.Super. 538 194 A.2d 361 Deborah FEKETE, an infant by John Fekete, her guardian ad
litem; and John Fekete, individually, Plaintiffs-Appellants,
v.
Sol SCHIPLER, Defendant-Respondent. No. A--424. Superior Court of New Jersey
Appellate Division. Argued Oct. 7, 1963.
Decided Oct. 16, 1963.

Page 539

[194 A.2d 362] Leonard S. Sachar, Plainfield, for appellants (Sachar, Sachar & Bernstein, Plainfield, attorneys).

Harry Smith, Paterson, for respondent (Vincent C. Duffy, Paterson, attorney).

Before Judges CONFORD, FREUND and SULLIVAN.

The opinion of the court was delivered by

SULLIVAN, J.A.D.

The infant plaintiff, a seven-year-old child, while riding a bicycle in a public street was injured in a collision with an automobile being operated by defendant. She sued for damages. Her father also sued for medical expenses incurred on behalf of his daughter. The case was submitted to a jury which returned a verdict of 'no cause of action.' Plaintiffs appeal.

On behalf of the infant plaintiff it is contended that the trial court's charge on contributory negligence was confusing and erroneous. We do not agree. The charge substantially set forth the correct rule of contributory negligence applicable to the instant case. Moreover, plaintiffs' objection to the charge, at trial, was confined to the court's statement that the jury should judge the infant 'by the conduct Expected of a girl her age * * * as to the conduct Expected

Page 540

of a seven-year old child and her intelligence or her ability.' (Emphasis added.) While not carefully articulated, the language used was substantially correct. Note the similar use of the word 'expected' in Bush v. N.J. & N.Y. Transit Co., Inc., 30 N.J. 345, 358, 153 A.2d 28, 77 A.L.R.2d 908 (1959).

It is also argued that the trial court erred in charging the jury that the father's claim for consequential damages would be barred by the contributory negligence of the infant plaintiff.

It is conceded that the general rule in this country is that a parent's claim for consequential damages is barred by the contributory negligence of the injured child. 3 Restatement, Torts, § 703, comment a (1938); 39 Am.Jur., Parent and Child, § 85, p. 731; 67 C.J.S. Parent and Child § 47. However, the rule has been criticized as illogical. See Prosser, The Law of Torts (2d ed. 1955) § 104, at p. 702; 1 Harper and James, The Law of Torts 633 (1956).

In this State the issue has never been directly passed upon, although several...