Holodook v. Spencer

Decision Date13 December 1973
Citation43 A.D.2d 129
PartiesJohn J. Holodook, as Parent and Natural Guardian of James J. Holodook, an Infant, et al., Appellants,<BR>v.<BR>Cornelius Spencer, Defendant and Third-Party Plaintiff-Respondent; Sophia Holodook, Third-Party Defendant-Appellant
CourtNew York Supreme Court — Appellate Division

Coffin, Inman & Inman (Myron Komar of Donohue, Bohl, Clayton & Komar of counsel), for appellants.

Hesson, Ford, Grogan, Sherwood & Whalen (Dale M. Thuillez of counsel), for defendant and third-party plaintiff-respondent.

Charles H. Carpenter for third-party defendant-appellant.

SWEENEY, KANE and REYNOLDS, JJ., concur with GREENBLOTT, J.; STALEY, JR., J. P., dissents and votes to affirm in a separate opinion.


This is an appeal from an order of the Supreme Court at Special Term, entered in Columbia County on March 7, 1973, which denied a motion to dismiss the counterclaim and third-party complaint.

These actions arise out of injuries sustained by a four-year-old infant pedestrian, James J. Holodook, who, while allegedly running from between parked cars on a street in Hudson, New York, was struck by an automobile owned and operated by the defendant and third-party plaintiff. The infant's father commenced an action for the infant's injuries and a derivative action for medical expenses and loss of services. The defendant answered, generally denying the allegations of the complaint and counterclaiming against the father. He sought indemnification for a portion or all of any verdict against him on the ground that the parent's lack of attention, care and control of his son was the proximate cause of the accident and resulting injuries. The defendant also commenced an independent third-party action against the infant's mother seeking the same relief. The parents' motion to dismiss the counterclaim and third-party complaint on the ground that they failed to state a cause of action was denied by Special Term.

The issue before us is whether a cause of action is stated against the parents of a four-year-old infant, when it is alleged that the accidental injuries sustained were caused by the parents' negligence in failing to "provide for the proper care, maintenance and instruction of the child and [leaving] a four-year-old child under such circumstances that the child ran from between parked cars into the street as a result of which he collided with the vehicle being operated by the defendant."

The attempt to impose liability upon the parents is undertaken pursuant to Dole v. Dow Chem. Co. (30 N Y 2d 143), which eliminated the distinction between "active" and "passive" negligence and held that joint tort-feasors liable for a plaintiff's injuries are entitled to contribution from each other in proportion to their relative degrees of responsibility. There can be little doubt that the actions charged to the parents in this case would have been categorized as "passive" under pre-Dole law so that the present counterclaim and third-party claim would not have been permitted. Prior to Dole, a "passive" tort-feasor was a tort-feasor nevertheless, but subject to liability only if sued by the plaintiff in the first instance. While we do not here undertake to settle the debate over whether Dole is "substantive" or "procedural", we believe the decision therein can be fairly characterized as having eliminated an unfair device whereby a party who had committed an otherwise actionable tort was immunized from liability because of the existence of another tort-feasor whose participation in the plaintiff's injuries was more "active". However, in achieving this result, Dole creates no torts that did not previously exist; thus it does not in and of itself constitute authority allowing these claims, for it is not every act or omission which constitutes a tort. In other words, Dole presupposes two or more parties guilty of a legally actionable wrong, not merely two parties who are in a relation to each other such that one might have been spared from liability had the other acted differently. The question we must decide is therefore identical to that presented in Graney v. Graney (43 A D 2d 207 [decided herewith]): is a parent liable in tort, where a child is injured as a result of a failure of supervision where there has been no act or omission which would have given rise to liability had the injured party been a stranger?

In answering this question, an examination of the history of tort liability between parents and children is helpful. Until recently, a parent could not be sued by its offspring for nonwillful torts, and the three leading cases establishing this proposition were Badigian v. Badigian (9 N Y 2d 472), Cannon v. Cannon (287 N.Y. 425), and Sorrentino v. Sorrentino (248 N.Y. 626). These cases ostensibly relied upon a principle of preserving family harmony, but this approach, as adopted in New York and a number of other States, became the subject of widespread criticism, including a dissent by Judge FULD in Badigian. As a result, a rapid judicial erosion of the intrafamily immunity doctrine took place, its interment in New York occurring with the decision in Gelbman v. Gelbman (23 N Y 2d 434). The Court of Appeals, per Judge BURKE, found that it could no longer "conclude that the doctrine is essential for the purpose of preserving family unity" (p. 437), and that therefore, Sorrentino, Cannon, and Badigian should be overruled. However, the court also noted that family harmony was not likely to be undermined in a case arising out of an automobile accident where there existed compulsory insurance, and further stated (p. 439): "By abolishing the defense of intrafamily tort immunity for nonwillful torts, we are not creating liability where none previously existed. Rather, we are permitting recovery, previously denied, after the liability has been established."

These statements have resulted in various interpretations. Some are of the view that Gelbman intended to abolish the immunity defense only in automobile cases or that Gelbman is applicable only in situations where the defendant parents are protected by insurance. (See, e.g., Graney v. Graney, 75 Misc 2d 828.) This view is supported by the fact that the common thread running through Sorrentino, Cannon and Badigian was that all involved the negligent operation of an automobile by a parent, and also by the statement in Gelbman that the litigation was really between the plaintiff and the insurance carrier (Gelbman v. Gelbman, supra, p. 438).

In our opinion, either view is too narrow. While Gelbman and the three cases it overruled coincidentally involved automobiles, we feel that they should be characterized as cases where a tort had clearly been committed and liability would most certainly have been imposed but for the familial relationship between the parties. Gelbman did no more, therefore, than to eliminate a defense which had been available solely to parents in suits by their children, or vice versa, where there was no question but that an otherwise actionable wrong had been committed.

In so doing, Gelbman did not create new torts. Had it done so, the very family relationship which had previously constituted merely a defense, would have become a basis for classifying as torts acts or omissions which could not create any liability to the world at large. That such a result could not have been intended is apparent when we examine the decisions in a host of other jurisdictions which did away with parental immunity before Gelbman. The case most frequently cited as having commenced the judicial erosion of the doctrine (without use of an exception placing the parent in another role, such as owner of a business [see, e.g., Borst v. Borst, 251 P. 2d 149 (Wash.)]) was Goller v. White (20 Wis. 2d 402), decided in 1963, six years before Gelbman. In that case, a foster parent[*] permitted his child to ride in an unsafe manner upon a tractor being operated by the parent, resulting in injuries. Such negligence was not "parental" in nature, and liability would have clearly existed had the parties not been parent and child. In holding that summary judgment dismissing the child's complaint against his foster parent was improper, the court abrogated the rule of parental immunity in negligence cases with two specific exceptions (p. 413): "(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". Other jurisdictions have also preserved these exceptions, and have explained that "parental functions are activities which directly relate to the parental duties of care and supervision of the child" whereas "the driving of a motor vehicle may not be really a parental function" (Rodebaugh v. Grand Trunk Western R. R. Co., 4 Mich. App. 559, 567).

An example of the operation of the Goller exceptions and their underlying rationale is Lemmen v. Servais (39 Wis. 2d 75). There, the six-year-old plaintiff had been struck by a car after alighting from a school bus. The defendants filed third-party complaints against the parents, alleging negligent or inadequate parental supervision. The court upheld a dismissal of the third-party complaint, holding that the parents "were acting within the scope of an exercise of ordinary parental discretion with respect to other care of their child" (p. 78). The court then went on to say (pp. 79-80):

"The familial obligations imposed by nature because of the parental relationship, imperfect though they may sometimes be because of the ever present common denominator of human behavior, are quite distinct from the general obligation which the law imposes upon every one in all his relations to his fellowmen, and for the breach of which it gives a remedy. The two exceptions enunciated in Goller recognize that within the framework of parental authority and discretion, parents must be

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