Nolechek v. Gesuale

• Decision Date: 27 December 1978
• Citation: 385 N.E.2d 1268,46 N.Y.2d 332,413 N.Y.S.2d 340
• Court: New York Court of Appeals Court of Appeals
• Parties: , 385 N.E.2d 1268 Walter L. NOLECHEK, Individually and as Administrator of the Estate of Scott W. Nolechek, Deceased, Respondent, v. Thomas GESUALE et al., Appellants, et al., Defendants. Walter L. NOLECHEK, Third-Party Plaintiff-Appellant-Respondent, v. Paul NEIMAN et al., Third-Party Defendants-Respondents.

Page 340

413 N.Y.S.2d 340

46 N.Y.2d 332, 385 N.E.2d 1268

Walter L. NOLECHEK, Individually and as Administrator of the Estate of Scott W. Nolechek, Deceased, Respondent, v. Thomas GESUALE et al., Appellants, et al., Defendants.

Walter L. NOLECHEK, Third-Party Plaintiff-Appellant-Respondent, v. Paul NEIMAN et al., Third-Party Defendants-Respondents.

Court of Appeals of New York.

Dec. 27, 1978.

Joseph D. Ahearn, New York City, for appellants

Charles F. Brady, Baldwin, and Benjamin Purvin, Lake Success, for appellant-respondent.

E. Richard Rimmels, Jr., Mineola, for third-party defendants-respondents.

OPINION OF THE COURT

BREITEL, Chief Judge.

Plaintiff Walter L. Nolechek, individually and as administrator of the estate of his son Scott, brought this action against defendants Gesuale, Star Sand and Gravel Co., Inc., and others for wrongful death resulting from the son's motorcycle accident. A counterclaim by defendants Gesuale and Star alleges negligence by the plaintiff father in providing his son, blind in one eye and with impaired vision in another, with a motorcycle. Special Term denied a motion to dismiss the counterclaim. From the Appellate Division's reversal and dismissal of the counterclaim, 58 A.D.2d 885, 396 N.Y.S.2d 881, one Justice, dissenting, defendants appeal. Plaintiff cross-appeals from the Appellate Division's dismissal of a third-party complaint against James and Paul Neiman, his son's companion and the companion's father.

The primary issue is whether an alleged tort-feasor, who may be cast in damages for injuries suffered by an infant child, may seek indemnity or contribution from the injured child's parent when the child's injury, and the tort-feasor's consequent tort liability, resulted from the parent's negligent entrusting of a dangerous instrument to the child.

The order of the Appellate Division should be modified to reinstate the counterclaim. The third-party complaint should stand dismissed. A minor child has no cause of action against his parent for negligent supervision in general, or for negligently entrusting him with a dangerous instrument in particular. There is, however, a duty by a parent to protect third parties from harm resulting from an infant child's improvident use of a dangerous instrument, at least, and perhaps especially, when the parent is aware of and capable of controlling its use (e. g., Lalomia v. Bankers & Shippers Ins. Co., 35 A.D.2d 114, 117, 312 N.Y.S.2d 1018, 1020, affd. on opn. at App.Div., 31 N.Y.2d 830, 339 N.Y.S.2d 680, 291 N.E.2d 724; Carmona v. Padilla, 4 A.D.2d 181, 183, 163 N.Y.S.2d 741, 742, affd. 4 N.Y.2d 767, 172 N.Y.S.2d 820, 149 N.E.2d 337; see Restatement, Torts 2d, § 316; Prosser, Torts (4th Ed.), pp. 872-873). Since defendants in this action stand to be harmed by the plaintiff father's alleged breach of duty, namely, they may be cast in damages for the son's death, the counterclaim against the father was improperly dismissed by the Appellate Division.

The complaint alleges that defendants Gesuale and Star, owners or lessees of property abutting Lawrence Road in Smithtown, were engaged in the business of mining sand and gravel. Lawrence Road was used by these defendants to transport the mined sand and gravel. Owners of adjacent properties, also named as defendants, had permitted on their property construction of concrete pillars supporting steel beams. From these beams, Gesuale and Star suspended a one-inch steel cable to close off the road. The cable, it is conceded, was in place "for a long time prior to" the date of the fatal accident.

On September 30, 1973, Scott Nolechek, 16 years old, and a friend, James Neiman, were riding motorcycles on Lawrence Road. Young Nolechek, as noted, was blind in one eye, had impaired vision in the other eye, and his long distance vision was uncorrectable. He did not possess, and had never applied for, an operator's license of any type. Yet, his father had purchased a motorcycle for him. The motorcycle had not been registered, nor had it been inspected. Scott Nolechek, riding his friend's motorcycle, for they had switched motorcycles just before the accident, was killed when he rode into the suspended steel cable.

The father brought this action against Gesuale and Star, against the property owners who had permitted construction of the concrete pillars, and against the town and its superintendent of highways. It was alleged that all parties were negligent in permitting a dangerous condition to exist without any warnings or safeguards. Defendants Gesuale and Star counterclaimed, alleging negligence by the father in providing his vision-impaired son with a motorcycle. Plaintiff responded by interposing a third-party complaint against James and Paul Neiman, his son's companion and the companion's father, alleging that due to the switch in motorcycles just before the accident, it was they who had provided young Nolechek with the motorcycle on which he was killed. The Neimans, third-party defendants, moved to dismiss both the counterclaim and the third-party complaint, and Special Term denied the motion. On appeal by the Neimans, the Appellate Division reversed and dismissed the counterclaim and the third-party complaint. From this order, defendants Gesuale and Star appeal. Plaintiff Nolechek also appeals, alleging error in dismissal of the third-party claim.

In Holodook v. Spencer, 36 N.Y.2d 35, 51, 364 N.Y.S.2d 859, 871, 324 N.E.2d 338, 346, it was held that an infant child has no cause of action against his parent for inadequate supervision. Defendants, arguing that a motorcycle is a "dangerous instrument" in the hands of a 16-year-old boy with impaired vision, would carve an exception to the Holodook rule. But deciding when to permit a minor to use a "dangerous instrument", whether it be a motorcycle, a bow and arrow, a knife, a hammer, or even a pencil, is as much an element of parental supervision as is the decision to monitor a child's play activity more or less closely (compare Id., pp. 41-42, 364 N.Y.S.2d pp. 863-864, 324 N.E.2d pp. 340-341; see, also, Seeberger v. Le Gare, 48 A.D.2d 994, 995, 370 N.Y.S.2d 210, 211). The proposed "dangerous instrument" exception to the Holodook rule is, therefore, neither analytically persuasive nor practically sound.

The thrust of the holding in Holodook is that parents are in the best position to determine how much supervision is right for their children (see 36 N.Y.2d, esp. pp. 49-51, 364 N.Y.S.2d pp. 870-872, 324 N.E.2d pp. 345-347, Supra ). When children are young, the decisions may involve the extent to which they will be permitted to stray from the immediate physical presence of their parents; when children are older, the decisions are more varied. Children might, at various points in their development, be permitted, and properly so, to use bicycles, lawn mowers, power tools, motorcycles, or automobiles, all of which are, in some contingencies, "dangerous instruments".

The guiding principles, however, remain the same: "The duty to supervise a child in his daily activities has as its objective the fostering of physical, emotional and intellectual development, and is one whose enforcement can depend only on love. Each child is different, as is each parent * * * For this reason parents have always had the right to determine how much independence, supervision and control a child should have, and to best judge the character and extent of development of their child" (Holodook v. Spencer, 43 A.D.2d 129, 135, 350 N.Y.S.2d 199, 204 (Greenblott, J.), Quoted at 36 N.Y.2d 35, 50, 364 N.Y.S.2d 859, 871, 324 N.E.2d 338, 346, Supra ). All the more, when a "dangerous instrument" or a sometimes dangerous instrument may be entrusted to a minor child is a significant discretionary decision in the proper exercise of this parental right.

Moreover, the practical consequences of permitting a child to recover on the "dangerous instrument" theory could be serious and unfortunate. One need only imagine young Nolechek riding his motorcycle on the family's own property, and encountering a ditch or an obscured rock. It would be unjust to permit one of Nolechek's parents, either individually or as administrator of the estate, to hold the other liable in a wrongful death action for entrusting the boy with a dangerous instrument. Recovery in such an instance might result in unwarranted benefit to both parents at the expense of their homeowner's insurance carrier.

By contrast, it is well-established law that a parent owes a duty to third parties to shield them from an infant child's improvident use of a dangerous instrument, at least, if not especially, when the parent is aware of and capable of controlling its use (see, e. g., Lalomia v. Bankers & Shippers Ins. Co., 35 A.D.2d 114, 117, 312 N.Y.S.2d 1018, 1020, affd. on opn. at App.Div., 31 N.Y.2d 830, 339 N.Y.S.2d 680, 291 N.E.2d 724, Supra ; Carmona v. Padilla, 4 A.D.2d 181, 183, 163 N.Y.S.2d 741, 742, affd. 4 N.Y.2d 767, 172 N.Y.S.2d 820, 149 N.E.2d 337, Supra ; Lichtenthal v. Gawoski, 44 A.D.2d 771, 772, 354 N.Y.S.2d 267, 268; Zuckerberg v. Munzer, 277 App.Div. 1061, 100 N.Y.S.2d 910; Agnesini v. Olsen, 277 App.Div. 1006, 100 N.Y.S.2d 338). This is not because parents are obliged to raise their children in any particular way; it is because however the children are raised, there must be respect for the hazards created for third parties. Parents are permitted to delegate to their children the decision to participate in dangerous activities, but they are not absolved from liability for harm incurred by third parties when the parents as adults unreasonably, with respect to such third parties, permit their children to use dangerous instruments.

To be sure, the harm to third parties in this case is not the direct, physical injury ordinarily caused by dangerous instruments. Instead, involved is financial harm resulting from potential liability of a "concurrent" tort-feasor for the child's death while using the dangerous...