Holodook v. Spencer

Decision Date20 December 1974
Citation364 N.Y.S.2d 859,324 N.E.2d 338,36 N.Y.2d 35
Parties, 324 N.E.2d 338 John J. HOLODOOK, Individually and as parent and natural guardian of James J. Holodook, an infant, Respondent, v. Cornelius SPENCER, Defendant and Third-Party Plaintiff-Appellant, Sophia Holodook, Third-Party Defendant-Respondent. Michael S. GRANEY, an infant, by Robert E. Heslin, his guardian ad Litem, Appellant, v. John A. GRANEY, Jr., Respondent. John M. RYAN, an infant, by Francis Ryan, his parent, et al., Appellants, v. Timothy FAHEY et al., Defendants, and Barbara L. Ryan, Respondent.
CourtNew York Court of Appeals Court of Appeals

Thomas A. Ford and Dale M. Thuillez, Albany, for defendant and third-party plaintiff-appellant Spencer.

Myron Komar, Albany, for respondent John J. Holodook.

Charles H. Carpenter, Cairo, for third-party defendant-respondent Sophia Holodook.

Jerome K. Frost, Troy, for appellant Michael Graney.

Myron Komar, Albany, for respondent John A. Graney.

Richard N. Cosentino, Weedsport, for appellants Ryan.

Warner M. Bouck, Albany, for respondent Barbara Ryan.

Charles H. Lynch, Jr., Auburn, for Timothy Fahey and another.


These three cases, which we consider together, present in varying contexts the issue whether a parent may be held liable for failure to adequately supervise an infant child. This fundamental question has not previously been resolved by this court because two procedural doctrines have prevented our direct consideration of the underlying substantive tort issue. The court-created intrafamilial immunity doctrine prevented our reaching the question in situations where the injured child sued his parent directly. Where the child sued a third party for negligence, the defendant was barred by statute 1 from raising a defense of the parent's contributory negligence in failing to provide proper supervision. But recent decisions of this court have removed some of the procedural impediments created by these doctrines, and now require us to consider the substantive issue of the parent's liability for negligent supervision of his infant child.

Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192, abrogated the defense of intrafamilial immunity for nonwillful torts. There, we held that a mother could maintain a negligence action against her 16-year-old unemancipated son for injuries she sustained as a passenger in an automobile driven by the son. The suit between parent and child, which, as between passenger and driver, would otherwise have been an ordinary negligence action, was thereby allowed. In abolishing the immunity defense, it was noted that no new intrafamilial liabilities were being created, but merely that recovery previously barred would thenceforth be allowed. In the present case, we must consider whether to recognize a new liability owing from parents to their children for negligent supervision.

Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 enlarged the availability of apportionment among joint tort-feasors. Today we must decide whether damages may be apportioned between a parent who failed to adequately supervise his child and a third party who injured the child, without resulting, in substantial effect, in an imputation of the parent's negligence to the child, in violation of the statutory directive contained in section 3--111 of the General Obligations Law.

Thus, the cases we decide today require us to specify the breadth of the path which we ventured upon in Gelbman, and to define its intersection with what will surely be the long, winding road of Dole. For reasons which follow, we have concluded that a child does not have a legally cognizable claim for damages against his parent for negligent supervision, and, in each case, we affirm the order of the Appellate Division. We proceed to set forth the facts of the three cases before us.

Graney v. Graney

The infant plaintiff in the Graney case fell from the third or fourth step of an 11-foot-high slide in a school playground. At the time of the fall, the infant was four years old and had been accompanied to the playground by his father who allegedly allowed the infant to stray from his immediate control. The infant, by a guardian ad litem, now sues his father. It is claimed that the father negligently permitted his son to engage in dangerous play activity without adequate warning or supervision. The father, by his attorney, moved to dismiss the complaint for failure to state a cause of action. Special Term granted the motion, and the Appellate Division affirmed, one Justice dissenting, finding that no cause of action exists for negligent supervision. The infant plaintiff appeals as of right.

Ryan v. Fahey

While playing in a neighbor's backyard, the three-year-old Ryan infant's hand was run over by a power-driven riding lawnmower operated by the neighbor's eight-year-old son. The mothers of both children were inside the neighbor's house at the time. The Ryan infant, by his father, sues his mother for negligently permitting her son to play in the yard under the circumstances and for failing to supervise, warn and protect him. The infant also sues the eight-year-old for negligent operation of the lawnmower and the eight- year-old's mother for failure to supervise her son while he was operating the lawnmower in an area where other children were playing. The infant's father also brings a derivative action against the three defendants for medical expenses.

The case comes to us in the posture of Mrs. Ryan's motion to dismiss the complaint as to her. 2 Special Term denied the motion and the Appellate Division unanimously reversed, finding that the infant's suit against his parent for negligent supervision was not within the contemplation of the Court of Appeals in Gelbman and that, in any case, negligent supervision is not a tort. Mrs. Ryan's motion to dismiss the complaint as to her was granted, and the remaining parties appeal as of right.

Holodook v. Spencer

The Holodook infant, at age four, allegedly darted out from between parked cars and was struck by an automobile driven by defendant. The infant, by his father, sued for personal injuries and his father brought a derivative action for both medical expenses and loss of services. The defendant then brought a third-party action for indemnification and apportionment of responsibility pursuant to Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, Supra against the infant's mother alleging that at the time of the accident the infant was in her custody and that she negligently failed to perform her parental duty to instruct, control and maintain her child. Defendant also counterclaimed for Dole apportionment and contribution against the infant's father alleging negligent failure to provide for the proper care, maintenance and supervision of his child. The infant's parents then moved to dismiss the third-party complaint and the counterclaim for failure to state a cause of action. Special Term denied the motion finding that Gelbman had completely removed the bar against intrafamilial suits, that Dole permitted the claims over against the parents and that a parent's negligent supervision of his child is an actionable tort. The Appellate Division reversed, one Justice dissenting, stating that while Gelbman might be read to allow survival of the immunity rule in the area of parental functions, this was unnecessary since a parent's misjudgment in supervising his child does not amount to the breach of a legal duty and therefore is not a tort. As a consequence, the court granted the parents' motion to dismiss the Dole counterclaim and third-party complaint for failure to state a cause of action. Defendant, third-party plaintiff, appeals as of right and is opposed not only by the third-party defendant, Mrs. Holodook, but, unlike the Graney and Ryan cases, by the infant plaintiff and his father as well.

I. Background.

As stated, in Gelbman we abrogated the defense of intrafamilial immunity for nonwillful torts. In so doing, it was necessary to overrule three earlier cases which, based upon the doctrine of intrafamilial tort immunity, had disallowed suits by children against their parents for injuries sustained as passengers in automobiles alleged to have been negligently operated (Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551; Cannon v. Cannon, 287 N.Y. 425, 40 N.E.2d 236; Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718). In Gelbman, we noted that the principal reason advanced in support of this doctrine--preservation of family harmony--had been effectively removed in that case by New York's compulsory automobile insurance. (See Dunlap v. Dunlap, 84 N.H. 352, 370--[324 N.E.2d 342] 372, 150 A. 905.) Since the reasons for the rule no longer justified it, the doctrine was abrogated. The decision approved the dissent of Judge Fuld, later Chief Judge, in Badigian v. Badigian, 9 N.Y.2d 472, 474--482, 215 N.Y.S.2d 35, 36--43, 174 N.E.2d 718, 719--724, Supra, in which he contended that a three-year-old child injured when he released the parking brake in his father's automobile should be permitted to recover against the father for his negligence in leaving the car unlocked. By way of criticism, he noted the many exceptions to the immunity rule. Thus, the family relation afforded no immunity if the child were emancipated or of legal age. An unemancipated minor child could sue his parent for breach of contract, injuries to his property, injuries sustained in the course of employment and intentionally inflicted injury. The thread common to the exceptions was that the family relation, in the eyes of the law, had terminated (in the case of emancipation or legal age), been abandoned (in the case of intentionally inflicted injury), or was logically irrelevant to the alleged wrong (in the case of contract, property damage or injury in the course of employment). The negligent operation or maintenance of an...

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  • Winn v. Gilroy
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    ...such as failure to supervise the child properly, would not be a tort irrespective of parental immunity. Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 (1974). See also Schneider v. Coe, 405 A.2d 682 (Del.1979) (no new cause of action for negligent Other courts have aban......
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