Foldi v. Jeffries

• Decision Date: 24 December 1981
• Citation: 440 A.2d 58,182 N.J.Super. 90
• Parties: Jennifer FOLDI, an infant by her guardian ad litem, Daniel R. Coburn, Plaintiff-Appellant, v. Dorsie G. JEFFRIES and Florence Jeffries and Michael Foldi and Bernadine Foldi, Defendants-Respondents and Dorsie G. JEFFRIES and Florence Jeffries, Third-Party Plaintiffs, v. Michael FOLDI and Bernadine Foldi, Third-Party Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 90

182 N.J.Super. 90

440 A.2d 58

Jennifer FOLDI, an infant by her guardian ad litem, Daniel

R. Coburn, Plaintiff-Appellant, v. Dorsie G. JEFFRIES and Florence Jeffries and Michael Foldi and Bernadine Foldi, Defendants-Respondents and Dorsie G. JEFFRIES and Florence Jeffries, Third-Party Plaintiffs, v. Michael FOLDI and Bernadine Foldi, Third-Party Defendants.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 17, 1981.

Decided Dec. 24, 1981.

R. Jerome Jabbour, Morristown, for plaintiff-appellant (Lucid, Jabbour, Pinto & Rodgers, Morristown, attorneys; R. Jerome Jabbour, Morristown, on the brief).

Donald S. McCord, Jr., Morristown, for defendants-respondents (O'Donnell, McCord & Leslie, Morristown, attorneys; Donald S. McCord, Jr., Morristown, on the brief).

Before Judges BOTTER, ANTELL and FURMAN.

The opinion of the court was delivered by

ANTELL, J. A. D.

In this personal injury action infant-plaintiff appeals from an order for summary judgment entered in favor of her parents, defendants Michael and Bernadine Foldi. Plaintiff was 21/2 years old at the time of the accident. Her theory of recovery is grounded in defendants' claimed failure to exercise reasonable care in supervising her behavior and to instruct her in personal care and safety. The order below rests on the doctrine of parental immunity.

While defendant Bernadine Foldi was working in her garden plaintiff wandered off to a neighbor's property where she was bitten by their dog. Although the mother had been keeping her eye on plaintiff the injury was sustained during a five or ten minute interval when the child slipped away and her absence went unnoticed. When she was later found by defendant she was crying and bleeding on another neighbor's driveway. This action was initiated against the owners of the dog, defendants Jeffries, who denied liability and filed a third-party complaint against Michael and Bernadine Foldi for indemnification. Plaintiff then amended her complaint to join her parents as defendants. We are advised that plaintiff's claim against defendants Jeffries has been settled.

Although the Supreme Court recognized in France v. A.P.A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970), that the parent-child immunity doctrine "should be abrogated in this State," it acknowledged "that there may be areas involving the exercise of parental authority and care over a child which should not be justiciable in a court of law." Noting that its decision went no further than to allow suits between unemancipated children and their parents for injuries suffered as the result of the negligent operation of a motor vehicle, the court left it to future cases to decide "what limits, if any, the rule enunciated here should have." 56 N.J. at 507, 267 A.2d 490.

Small v. Rockfeld, 66 N.J. 231, 330 A.2d 335 (1974), removed all doubt that the rule abrogating immunity was not limited to motor vehicle negligence and applied it in that case to allow an action against the infant-plaintiff's father for feloniously causing the death of his wife, the infant's mother. However, the court again observed that immunity could still be operative in "special areas in the parent-child relationship, such as customary care and discipline," and specifically commented that immunity had been terminated only in cases not involving the exercise of "parental authority and adequacy of child care." 66 N.J. at 244, 330 A.2d 335. It also noted with apparent approval the following exceptional situations identified in Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (Sup.Ct. 1963), in which immunity might still prevail:

(1) Where the alleged negligent act involves an exercise of parental authority over the child; and (2) Where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. (at 243, 330 A.2d 335; emphasis ours).

The residual limits of the immunity doctrine have since been considered in four other New Jersey cases. In Dower v. Goldstein, 143 N.J. Super. 418, 363 A.2d 373 (App.Div. 1976), the doctrine was held not applicable to bar a suit by an infant-plaintiff against his parents for injuries caused by the parents' dog. In Gross v. Sears, Roebuck & Co., 158 N.J. Super. 442, 386 A.2d 442 (App.Div. 1978), a suit was allowed against defendant-father for negligently injuring the infant-plaintiff in the operation of a lawnmower.

Fritz v. Anderson, 148 N.J. Super. 68, 371 A.2d 833 (Law Div. 1977), and Convery v. Maczka, 163 N.J. Super. 411, 394 A.2d 1250 (Law Div. 1978), addressed circumstances materially analogous to those here presented. In Fritz the infant-plaintiff sued for injuries caused by a fall into an excavation on a neighbor's property. The action was grounded in alleged failure by defendant parents to supervise and instruct as to principles of safety. These breaches of care were held to involve the exercise of parental authority and discretion, and therefore, under the doctrine of parent-child immunity, not redressable. Arriving at a different result, the Convery court held that immunity was not applicable for failure to supervise where the child fractured a bone by jumping from a chair. It was there reasoned by our dissenting colleague that the injury was "actionable within the limits of reasonable foreseeability against others with a special relationship to the child." 163 N.J. Super. at 416, 394 A.2d 1250. Although he held that the right of recovery did not "arise exclusively out of the parent-child relationship," the only relationship, "special" or otherwise, we discern between the injured plaintiff and defendant from which a duty of care might have arisen was that of parent and child. Since such a duty cannot be isolated from the concept of parental care and authority and its attendant immunity, we are unable to agree with the rationale of that decision.

It is evident in the foregoing cases, except for Convery, that the determinant was not whether the harm could have been avoided by the exercise of parental care, but whether the parents' conduct was the causative agency of harm or created the foreseeable risk thereof and was negligent without reference to any duty of parental care. That this was the controlling factor in Gross was stated by that court in the following words:

The essence of the alleged negligence herein arises out of the affirmative act of the parent in mowing the lawn. Whether or not this act was accompanied by a warning to his child to "go away," the cause of action does not constitute one arising out of the exercise of "parental authority" so as to warrant the application of the immunity doctrine. (158 N.J. Super. at 447-448, 386 A.2d 442)

It is not here suggested that defendants contributed in any affirmative way to the happening of this accident.

Every person is answerable for the consequences of his actions or failures to act which are the proximate cause of reasonably foreseeable harm to others. Immunity therefor may be judicially conferred only "on the basis of policy or, perhaps more accurately, on the weighing of competing policies." Hastings v. Hastings, 33 N.J. 247, 250, 163 A.2d 147 (1960), overruled on other grounds, 56 N.J. 500, 507, 267 A.2d 490 (1970).

In this State parent-child immunity originally rested on the judicial policy of preserving family harmony. More recent cases emphasized that it was needed to foreclose possibilities for fraud and collusion. However, both of these bases now stand categorically rejected. France v. A.P.A. Transport Corp., supra, 56 N.J. at 504-505, 267 A.2d 490; Merenoff v. Merenoff, 76 N.J. 535, 550-554, 388 A.2d 951 (1978). Although our Supreme Court has distinctly stated that limited immunity survives within the parent-child relationship, we are aware of no authoritative statements identifying the purpose or policy to be served by the immunity in its present...