Hlavinka by Hlavinka v. Slovak Sky Bungalow Colony

• Decision Date: 28 April 1994
• Citation: 611 N.Y.S.2d 335,203 A.D.2d 855
• Parties: Alexandra HLAVINKA, an Infant, by Josef HLAVINKA, Her Father and Natural Guardian, et al., Plaintiffs, v. SLOVAK SKY BUNGALOW COLONY et al., Defendants and Third-Party Plaintiffs-Appellants; Margarita Hlavinka, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 335

611 N.Y.S.2d 335

203 A.D.2d 855

Alexandra HLAVINKA, an Infant, by Josef HLAVINKA, Her Father and Natural Guardian, et al., Plaintiffs, v. SLOVAK SKY BUNGALOW COLONY et al., Defendants and Third-Party Plaintiffs-Appellants Margarita Hlavinka, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Third Department.

April 28, 1994.

Ann K. Kandel (Kathleen D. Foley, of counsel), Woodbury, for defendants and third-party plaintiffs-appellants.

Silver, Forrester, Schisano & Lesser (Michael Forrester, of counsel), Newburgh, for third-party defendant-respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and WEISS, JJ.

WEISS, Justice.

Appeal from an order of the Supreme Court (Williams, J.), entered June 3, 1993 in Sullivan County, which granted third-party defendant's motion to dismiss the third-party complaint.

Nine-year-old plaintiff Alexandra Hlavinka (hereinafter plaintiff) was injured while a spectator at a volleyball game when a goal post and station at the athletic field fell onto her legs. She and her father commenced an action in negligence for her personal injuries against defendants, who are alleged to have owned, maintained, and operated the real property on which the accident occurred. Defendants commenced a third- party action against Margarita Hlavinka, plaintiff's mother, who apparently was employed by defendants, inartfully alleging three causes of action. The first two claims alleged in the third-party complaint are for negligent supervision by a parent of a child. The third claim essentially alleges that in rendering emergency assistance and aid to plaintiff, the injury caused by the accident was aggravated. Third-party defendant successfully moved to dismiss the third-party complaint for failure to state a cause of action. Defendants have appealed the resultant dismissal.

The negligent failure to supervise a child is not recognized in this State as a tort actionable by the child against his or her parent (Parsons v. Wham-O Inc., 150 A.D.2d 435, 436, 541 N.Y.S.2d 44; Zikely v. Zikely, 98 A.D.2d 815, 470 N.Y.S.2d 33, affd on mem. below 62 N.Y.2d 907, 479 N.Y.S.2d 8, 467 N.E.2d 892; see, Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268; Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338). Similarly, a third party cannot seek contribution from a parent on the basis that a child's injury was the result, either in whole or in part, of the parent's failure to supervise the child (Reale v. Herco Inc., 183 A.D.2d 163, 168, 589 N.Y.S.2d 502; Russo v. Osofsky, 112 A.D.2d 926, 492 N.Y.S.2d 623; Kroupa v. Southampton Hosp., 49 A.D.2d 926, 927, 374 N.Y.S.2d 37). The first two claims in the third-party complaint fall squarely within this rule, clearly failing to state a cognizable cause of action, and were properly dismissed as a matter of law by Supreme Court.

The remaining claim is couched in ordinary and affirmative negligence, alleging specifically that third-party defendant negligently handled plaintiff following the injury "by lifting her leg and making her bend the knee which forced the shin to bend even more, thereby aggravating" the injury. The fact that third-party defendant is the mother of plaintiff does not diminish or excuse her culpability for her negligent actions which resulted in injury to the child (see, Gelbman v. Gelbman, 23 N.Y.2d 434, 439, 297 N.Y.S.2d 529, 245 N.E.2d 192; see also, Grivas v. Grivas, 113 A.D.2d 264, 496 N.Y.S.2d 757; Zikely v. Zikely, supra; Goedkoop v. Ward Pavement Corp., 51 A.D.2d 542, 378 N.Y.S.2d 417). While...