Hadden v. Kero-Sun, Inc.

Decision Date25 October 1993
Docket NumberINC,KERO-SU
Citation602 N.Y.S.2d 880,197 A.D.2d 668
PartiesAnn Marie HADDEN, etc., et al., Plaintiffs-Respondents, v., et al., Defendants-Respondents, Theodore Hadden, et al., Appellants.
CourtNew York Supreme Court — Appellate Division

Drake, Sommers, Loeb, Tarshis & Catania, P.C., Newburgh (Stephen J. Gaba, of counsel), for appellants.

Finkelstein, Levine, Gittelsohn & Tetenbaum, Newburgh (Steven Lim, of counsel), for plaintiffs-respondents.

Calinoff & Katz, New York City (Robert A. Calinoff, of counsel), for defendants-respondents Toyotomi Kogyo Co., Ltd., and Toyotomi of America, Inc.

Before MANGANO, P.J., and BALLETTA, ROSENBLATT and RITTER, JJ.

MEMORANDUM BY THE COURT.

In a negligence and products liability action to recover damages for personal injuries, etc., the defendants Theodore Hadden and Donna Hadden appeal from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated June 7, 1991, which denied their motion for summary judgment dismissing the complaint insofar as it is asserted against them and any cross claims against them.

ORDERED that the order is affirmed, with one bill of costs to the plaintiffs-respondents and the defendants-respondents Toyotomi Kogyo Co., Ltd., and Toyotomi of America, Inc., appearing separately and filing separate briefs.

The appellants are the paternal grandparents of the infant plaintiff Ann Marie Hadden. At the time of the accident herein, the infant and her parents had been living in the appellants' home for approximately two months, during which time the appellants would watch the infant, including changing her diapers and/or feeding her whenever her mother went to work or went out. Sometimes the appellants would buy diapers or feed the infant from their own food supplies. On the date of the accident, the mother was working and the infant was being cared for by the appellants. The infant, who had just turned one year old and was beginning to walk, tripped and fell onto a hot kerosene heater that was kept in an open space in the family room. In addition to commencing a suit against the manufacturer and distributor of the heater, the infant's mother also commenced suit against the appellants alleging, inter alia, negligent supervision of the infant. The appellants moved for summary judgment dismissing the complaint insofar as it is asserted against them, arguing that since they were acting in loco parentis, they were immune to a claim of negligent supervision under Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338. The court denied the motion, finding the existence of triable issues of fact.

In Holodook v. Spencer, supra, at 40, 364 N.Y.S.2d 859, 324 N.E.2d 338, the Court of Appeals concluded that "a child does not have a legally cognizable claim for damages against his parent for negligent supervision". It has since become established that this "principle that precludes tort claims against parents for alleged negligent supervision of a child does not extend to immunize a grandparent from such claims when he or she is exercising temporary custody and control of the...

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7 cases
  • Yolanda D., Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • 7 de agosto de 1995
    ...801). A person acts in loco parentis when he or she intends to assume all the obligations of parenthood (see, Hadden v. Kero-Sun, Inc., 197 A.D.2d 668, 669, 602 N.Y.S.2d 880; People v. Lilly, 71 A.D.2d 393, 422 N.Y.S.2d 976; Rutkowski v. Wasko, 286 App.Div. 327, 143 N.Y.S.2d 1; Matter of Ja......
  • People v. Munck
    • United States
    • New York Supreme Court — Appellate Division
    • 29 de dezembro de 2011
    ...a permanent basis must be shown”]; People v. Stephens, 3 A.D.3d at 61, 769 N.Y.S.2d 249 [1st Dept. 2003]; Hadden v. Kero–Sun, Inc., 197 A.D.2d 668, 669, 602 N.Y.S.2d 880 [2d Dept. 1993]; People v. Lilly, 71 A.D.2d 393, 394, 422 N.Y.S.2d 976 [4th Dept. 1979] ). Critically, Rutkowski emphasiz......
  • McVawcd-Doe v. Columbus Ave. Elementary Sch.
    • United States
    • New York Supreme Court
    • 17 de agosto de 2020
    ...supra, 286 App.Div. at 331, 143 N.Y.S.2d 1; see also, Matter of Jamal B., 119 Misc.2d 808, 465 N.Y.S.2d 115). Hadden v Kero-Sun, Inc., 197 A.D.2d 668, 669 (2d Dept 1993). The Complaint alleges that the Defendants stood in loco parentis, which the Court must accept as true for purposes of th......
  • McVawcd-Doe v. Columbus Ave. Elementary Sch.
    • United States
    • New York Supreme Court
    • 17 de agosto de 2020
    ... ... determining a motion to dismiss. EBC I, Inc. v ... Goldman, Sachs & Co., 5 N.Y.3d 11, 19 (2005) ... On a motion to dismiss for ... 465 N.Y.S.2d 115) ... Hadden v Kero-Sun, Inc., 197 A.D.2d 668, 669 (2d ... Dept 1993) ... The ... ...
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