Lastowski v. Norge Coin-O-Matic, Inc.

• Decision Date: 08 April 1974
• Docket Number: INC,COIN-O-MATI
• Citation: 355 N.Y.S.2d 432,44 A.D.2d 127
• Parties: Walter Jude LASTOWSKI, etc., et al., Appellants, v. NORGE, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 432

355 N.Y.S.2d 432

44 A.D.2d 127

Walter Jude LASTOWSKI, etc., et al., Appellants, v. NORGE COIN-O-MATIC, INC., et al., Respondents.

Supreme Court, Appellate Division, Second Department.

April 8, 1974.

Finkelstein, Mauriello, Kaplan & Levine, P.C., Newburgh (Howard Karger, Newburgh, of counsel), for appellants.

Alfred Schleider, Goshen (Herbert L. Ruttenberg, New York City, of counsel), for respondents.

Before GULOTTA, P.J., and HOPKINS, MARTUSCELLO, LATHAM and SHAPIRO, JJ.

SHAPIRO, Justice.

The issue in this case was spawned by Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 and Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192. Basically the question is: Does lack of supervision of an unemancipated child by his parents, as a result of which he is injured, constitute an actionable tort? We answer that question in the negative.

THE PLEADINGS AND THE DECISION AT THE TRIAL TERM.

The infant's father brought this action to recover for the injuries suffered by his infant son, aged four years, ¹ when he was struck by a motor vehicle driven by defendant Price and owned by defendant Norge Coin-O-Matic, Inc. (Norge). The father also seeks recovery for his own medical expenses and the loss of the services and companionship of his infant son. The accident happened on a public highway.

The defendants, in their amended answer, asserted a counterclaim which alleges that the infant's damages were due to the negligence of the father in Failing to supervise the infant in an area traversed by motor vehicles, and they therefore ask for an apportionment of the liability between themselves and the father if they are held liable on the infant's cause of action. The plaintiffs orally moved to dismiss the counterclaim, but the Trial Term ruled that it stated a valid cause of action. The plaintiffs appeal, contending that the counterclaim is insufficient as a matter of law, because it fails to state that the infant 'was in need of unusual supervision or that he was in some way mentally or physically disabled.'

We agree with the plaintiffs' contention that the counterclaim is insufficient as a matter of law, but not upon the ground urged by them. In accord with the only three appellate court decisions on that subject which we have been able to find in the State (Holodook v. Spencer, 43 A.D.2d 129, 350 N.Y.S.2d 199 (3rd Dept.); Graney v. Graney, 43 A.D.2d 207, 350 N.Y.S.2d 207 (3rd Dept.); Ryan v. Fahey, 43 A.D.2d 429, 352 N.Y.S.2d 283 (4th Dept.) we hold that in this State and under the circumstances of this case there is no tort liability on the part of a parent for negligent failure to properly supervise an unemancipated child.

THE LAW.

The counterclaim in this case is based on the decision in Dole (supra), in which the Court of Appeals made new law when it decided that 'where a third party is found to have been responsible for a part, but not all, of the negligence for which a defendant is cast in damages, the responsibility for that part is recoverable by the prime defendant against the third party' and that 'to reach that end there must necessarily be an apportionment of responsibility in negligence between those parties' (pp. 148--149 of 30 N.Y.2d, p. 387 of 331 N.Y.S.2d p. 292 of 282 N.E.2d).

To get under the umbrella of that case the defendants, in their counterclaim, allege that the plaintiff father was guilty of negligence, because he failed to properly supervise his infant son at the place where the latter was injured. My learned brother Justice Hopkins and I agree that if the counterclaim states a cause of action it is only because there is a recognizable tort of failure to supervise, which, under the facts here, could give rise to an action directly by the infant against his parents for the injuries he sustained in the instant accident. Justice Hopkins, in his erudite dissent, concludes that there is such a tort and that the removal of the bar against intrafamilial suits by Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192, Supra, sanctions the counterclaim here interposed. I do not agree.

Absent binding precedents in this State establishing the existence of a cause of action in tort for injuries sustained by an unemancipated child arising from inadequate parental supervision (and I have found none), we are faced with the need to determine whether as a matter of public policy we should now judicially create such a cause of action.

That parents owe a moral duty to their children which flows from what Judge Lewis in Cannon v. Cannon, 287 N.Y. 425, 427--428, 40 N.E.2d 236, 237, described as 'that natural kinship between parent and child' is beyond question. Discussing that duty, Judge Lewis said (pp. 428--429, 40 N.E.2d pp. 237--238):

'The law requires of parents that they provide care, maintenance and guidance for their unemancipated minor child. To that end they are entitled to his custody. Such duties and rights may be enforced by legal process. Thus has the law recognized in the family something more than a social unit, something more practical than a spiritual concept. It has sanctioned the family relationship--particularly the relationship of parent and child--as the basis for regulating those reciprocal obligations between parent and child which may be the subject of legal enforcement.

'In the process of rearing a child and the fulfillment of the legal duties of care, maintenance and guidance, the conduct of the parents toward the child is of necessity affected by the parental relation. We know that family unity is not created by law. But, as we have seen, the law does not fail to recognize family unity as a factor in human conduct and relationship. As to the child--what he may expect from his parents and what he owes to them as a matter of filial duty differ widely from his rights and duties in his relations to those not in Loco parentis. As to the parents--the law which imposes upon them the duty to support and discipline a minor child, and to prescribe a course of conduct designed to promote his health, education and recreation, accords to the parents a wide discretion. In the exercise of that discretion and the performance of duties imposed by law through no choice by the parents, they are held to no higher standard of care than the measure of their own physical, mental and financial abilities to provide for the well-being of their child. Lack of means, physical weakness or mental incapacity may cause parents to tolerate conditions in the family home which are unsafe and which might afford a basis for liability to one coming to the premises as an invitee or licensee. Not yet, however, have our courts granted an unemancipated child--whom the law decrees to be a member of that household--the right to hold his parents in damages for unintended personal injuries resulting from such conditions. Indeed, if within the wide scope of daily experiences common to the upbringing of a child a parent may be subjected to a suit for damages for each failure to exercise care commensurate with the risk--for each injury caused by inattention, unwise choice or even selfishness--a new and heavy burden will be added to parenthood' (emphasis supplied).

In Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718 a mother brought an action against her husband on behalf of their three-year-old child. She alleged that her husband had negligently left the family automobile unlocked in a parking lot and that the child released the brakes and was hurt when he tried to jump from the vehicle. In writing for the court (Judge Fuld (later Chief Judge), dissenting), Chief Judge Desmond said: 'There is no decision in any American or English appellate court sustaining such a cause of action as is here alleged' (p. 473, 215 N.Y.S.2d p. 36, 174 N.E.2d p. 719). In his dissent, Judge Fuld pointed out: 'If the present decision were necessary to preserve the integrity of the family, I would subscribe to it. But I do not believe that it is' (p. 474, 215 N.Y.S.2d p. 37, 174 N.E.2d p. 720). He then said that 'to deny redress in automobile negligence cases, is wrong in principle and at odds with justice and modern-day realities' (pp. 474--475, 215 N.Y.S.2d p. 37, 174 N.E.2d p. 720) and that 'we should hold that the child is not to be denied the benefit of insurance that would be available for a stranger' (p. 478, 215 N.Y.S.2d p. 40, 174 N.E.2d p. 722). He then reasoned (p. 479, 215 N.Y.S.2d p. 41, 174 N.E.2d p. 723):

'Certainly, where there is insurance, it becomes more difficult to justify the stock arguments advanced against recovery, to say that recognition of a right of action destroys our concept of the family unit. Gone is the fear of impoverishing the family, of impairing parental discipline or of disrupting domestic harmony. The child's suit, if successful, will provide a fund to care for its injuries which might otherwise be unavailable. Far from upsetting family ties, the suit is actually an incident in the course of a family's provident management of its affairs. See, e.g., Dunlap v. Dunlap, 84 N.H. 352, 368, 150 A. 905, Supra.'

The rationale of his dissent was that the plaintiff's cause of action would not tend to destroy the 'integrity of the family'. Tested by that yardstick we are compelled to conclude that permitting Automatic lawsuits or, as in this case, an Automatic counterclaim on the basis of an allegation of failure to supervise would have the very effect (the disruption of the family unit) which Judge Fuld said would motivate him to agree with the majority in Badigian (supra). In Gelbman v. Gelbman, 23 N.Y.2d 434, 437--439, 297 N.Y.S.2d 529, 531--532, 245 N.E.2d 192, 193, Supra, ² the court (per Burke, J.) adopted 'the convincing arguments advanced by Judge Fuld in his comprehensive dissent in Badigian', but was careful to point out that 'the present litigation is, in reality, between the parent passenger and her insurance carrier' and...