Morales v. Moss

• Decision Date: 08 April 1974
• Citation: 44 A.D.2d 687,355 N.Y.S.2d 456
• Parties: Francisco MORALES, etc., et al., Respondents, v. David MOSS et al., Defendants, and Pentagon Paint Co., Inc., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 456

355 N.Y.S.2d 456

44 A.D.2d 687

Francisco MORALES, etc., et al., Respondents, v. David MOSS et al., Defendants, and Pentagon Paint Co., Inc.,

Appellant.

Supreme Court, Appellate Division, Second Department.

April 8, 1974.

Before GULOTTA, P.J., and LATHAM, SHAPIRO, BRENNAN and CHRIST, JJ.

MEMORANDUM BY THE COURT.

In a negligence and breach of warranty action to recover damages for personal injuries sustained by the infant plaintiff and for medical expenses, etc., of his father, defendant Pentagon Paint Co., Inc. appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County, dated January 4, 1973, as granted the branch of plaintiffs' motion which was to dismiss said defendant's counterclaim against the plaintiff father, with leave to move for permission to replead.

Order affirmed insofar as appealed from, with $20 costs and disbursements, on the authority of Lastowski v. Norge Coin-O-Matic, Inc., 44 A.D.2d 127, 355 N.Y.S.2d 432 (decided herewith).

LATHAM, SHAPIRO and BRENNAN, JJ., concur.

CHRIST, J., concurs in the result, with the following memorandum:

There may be evidence enough in this case to require the plaintiff father-natural guardian to share the burden of liability with appellant. Nevertheless, I concur in the affirmance of the dismissal of the weak counterclaim, since permission was also given appellant to move at Special Term to state with more specification a sufficient cause of action.

If facts can be established to show that the father knowingly painted the walls of the place where the infant was living, with paint known to be injurious to children, a question of affirmative negligence would be raised. If the father stood by and watched the young child eating poisonous paint without stopping him, there would be such a failure to supervision as to give rise to a cause of action.

Every parental failure of supervision even though resulting in child injury is not actionable. On the other hand, parental failure of supervision may be so gross as to give rise to a good cause of action. Parents do not hold a blanket immunity for failure to supervise.

It is the responsibility of the trier of the facts to apply the tests of negligence and answer the questions of due care. Did the parent act as a reasonably prudent person would have acted under the same circumstances is the ever present question in these cases. The parent-child relationship is a circumstance to be considered. Under the rule of Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, a very broad discretion is of necessity left with the trier of the facts in fixing the proportion of liability to be assessed against each joint feasor. The determination of negligence is not more difficult and the burden of deciding whether the failure to supervise in a given case is negligence blends easily with burden to apportion in a Dole case such as this.

GULOTTA, P.J., dissents and votes to reverse the order insofar as appealed from and to deny plaintiffs' motion insofar as it was to dismiss the counterclaim of defendant Pentagon Paint Co., Inc. against the plaintiff father, with the following memorandum:

This case involves a question similar to that being decided herewith in Lastowski v. Norge Coin-O-Matic, Inc., 44 A.D.2d 127, 355 N.Y.S.2d 432, although here the father's involvement in the alleged negligence causing the infant's injury is more pronounced. The essence of the charge is that the infant plaintiff, who was 4 1/2 years old at the time of the accident, on or about June 24, 1970, ingested paint chips, flakes and particles in an apartment in which he had his father were tenants, as a result of which he contracted lead poisoning.

The owner-landlord, the retailer of the paint and the manufacturer, appellant Pentagon Paint Co., Inc., were made parties defendant. Relying upon the principle of Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, both the retailer and Pentagon counterclaimed against the father for an apportionment of damages in the event the infant recover against them, the ground for this being that, although the owner supplied the paint, it was actually the father who applied it to the apartment. Special Term granted plaintiffs' motion to dismiss these counterclaims, with leave to plead over 'setting forth a sufficient cause of action.' Only Pentagon appealed. Thus this case is not concerned solely with negligent supervision.

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