Miller v. Davis
| Decision Date | 24 March 1966 |
| Citation | 268 N.Y.S.2d 490,49 Misc.2d 764 |
| Parties | Thomas MILLER, an Infant by Betty Jo Miller, Parent and Natural Guardian and Betty Jo Miller, Individually, Plaintiffs, v. Thomas DAVIS and James Sheldon, Defendants. |
| Court | New York Supreme Court |
Arnold H. Rickler, Buffalo, for plaintiffs.
Gleason & O'Connor, Buffalo (Harvey Mandelkern, Buffalo, of counsel), for defendant James Sheldon.
Plaintiff moves, pursuant to CPLR 3211(b), to dismiss defendant James Sheldon's first affirmative defense, on the grounds that a defense is not stated and that there is no merit to the defense.
The affirmative defense to which plaintiff objects alleges that defendant James Sheldon, at the time of the incidents involved in the action, stood 'in loco parentis' to the unemancipated infant plaintiff.
This is a negligence action brought by Betty Jo Miller individually and as parent and natural guardian of Thomas Miller, a two year old infant, for personal injuries sustained on November 25, 1965, while the infant plaintiff was a passenger in an automobile owned and operated by defendant James Sheldon and which vehicle came into collision with a second automobile owned and operated by the other defendant Thomas Davis.
The infant was placed in defendant Sheldon's home as a foster child by the Erie County Department of Social Welfare, when said infant was about ten days old, and has resided therein ever since.
Throughout this period, full financial support for the child was provided by the Department of Social Welfare. There were periodic inspection visits to the home by a case worker from the agency and no evidence has been offered to indicate or suggest that the care and attention offered the child by the foster parents was in any way unsatisfactory or inadequate.
It is well recognized that an unemancipated infant is barred from maintaining an action against his natural parent for damages for personal injuries arising from ordinary negligence. (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.)
This immunity also extends to one 'in loco parentis.' (Rutkowski v. Wasko, 286 App.Div. 327, 143 N.Y.S.2d 1.)
Whether a person, such as Sheldon, stands 'in loco parentis' which would render him immune from civil liability in a negligence action by an unemancipated infant, is primarily a question of intent to be determined in the light of the circumstances in each case. (Rutkowski v. Wasko, supra; Niewiadomski v. United States, 6 Cir., 159 F.2d 683.)
Where the evidentiary facts presented are in conflict or where different inferences may reasonably be drawn from the evidence, the issues should not be resolved as a matter of law and the defendant should have an opportunity under his affirmative defense to a separate trial to determine whether he stands 'in loco parentis' to the infant plaintiff....
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Johnson v. Jamaica Hosp.
...cannot be based solely upon a relationship where, as here, one is compensated for providing services to a child. (See Miller v. Davis, 49 Misc.2d 764, 268 N.Y.S.2d 490 There are no allegations in plaintiffs' complaint to support the conclusion that defendant, at the time of the abduction, s......
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Mayberry v. Pryor
...parent-child existing at the time of the event to preclude a cause of action for negligent supervision." Accord Miller v. Davis, 49 Misc.2d 764, 268 N.Y.S.2d 490 (1966). These considerations are equally applicable to this state's system of providing foster care. As previously noted, foster ......
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St. John, In re
...an assumption of the responsibility for the support of the child is insufficient to place the Liunis In loco parentis (Miller v. Davis, 49 Misc.2d 764, 268 N.Y.S.2d 490). To award legal custody of this child to foster parents without their simultaneous assumption of the full responsibilitie......
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Andrews v. Otsego County
...a nonwillful tort. However, the immunity defense did not apply to an action by an infant child against a foster parent. Miller v. Davis, 49 Misc.2d 764, 268 N.Y.S.2d 490. This conclusion was premised upon a determination by Special Term (JASEN, J.) that a foster parent who had not assumed a......