Owens v. Ivey
| Decision Date | 05 February 1988 |
| Citation | 138 Misc.2d 671,525 N.Y.S.2d 508 |
| Parties | Debbie OWENS, Parent of Patricia Mason, 53 Bartlett Street, Rochester, New York 14608, Plaintiff, v. R.M. IVEY, Parent of Sonia Ivey, 121 Columbia Avenue, Rochester, New York 14608, Defendant. |
| Court | New York City Court |
Debbie Owens, pro se.
R.M. Ivey, pro se.
Robert Abrams, Atty. Gen. by Eugene Welch, Asst. Atty. Gen., rochester.
This is a civil action in Small Claims Court in which the plaintiff, Patricia Mason, a 17 year old girl, by her mother, Debbie Owens, seeks to recover money damages from Rose M. Ivey, the mother of Sonia Ivey, another 17 year old girl, for injuries and loss of personal property Patricia suffered during a fight with Sonia.
On April 22, 1986, Sonia Ivey was walking along Seward Street, several blocks away from her home, when she saw Patricia Mason coming toward her on the opposite side of the street. The two girls had lived in the same neighborhood for quite some time, but had not attended school together, nor had they ever become social friends. Sonia crossed Seward Street, and challenged Patricia with words such as, "Don't act as if you don't know me," and then struck her in the face. That attack then erupted into a full-scale assault in which Sonia scratched Patricia's face, ripped jewelry from her neck and ears, and tore her clothing. When Patricia tried to run away, Sonia pursued her and hit her several times from behind. As a result of this unprovoked aggression, Patricia lost jewelry consisting of three gold neck chains, and a pair of diamond earrings, valued at more than $800.00; and she also lost the clothing she had worn that day. Moreover, she sustained physical injuries serious enough to visit an emergency room of a local hospital. In all, the damages for the jewelry, the clothing, and her medical bill exceed $1,000.00.
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The evidence adduced at the hearings on October 5, 1987 and October 26, 1987, established that there was no prior history of assaultive behavior on Sonia's part, and no way in which her mother, Rose, could have foreseen this event. Moreover, Rose Ivey was neither present, nor in the vicinity, when this altercation occurred. For that matter, neither was Patricia's mother, Mrs. Owens, present or close by. Both parents were at work.
Patricia filed assault charges against Sonia which were adjourned in contemplation of dismissal (CPL § 170.55) after several informal sessions at a community dispute resolution center failed to achieve an amicable resolution of the case. The "bone of contention" between the parties remains the unliquidated sums to be paid as damages. Though authorized to do so, (CPL 170.55[4] ), the criminal court did not determine an award of damages to Patricia, but has referred all parties to their civil remedies.
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Upon all these facts, this Court finds that Sonia's behavior constituted a malicious and destructive act which caused both personal injury and loss of property to Patricia Mason. The Court also finds, without dispute in the evidence, that Rose M. Ivey, the defendant, was the natural mother of Sonia Ivey on April 22, 1986, and that Sonia was in her custody and was not emancipated from her household at that time.
In view of these factual findings, the Court now turns to the question(s) of law which these facts have raised; in particular, New York's Parental Liability Act.
(1) The Statute
The current version of this much-amended law has two paragraphs. In paragraph one, the statute fixes an unconditional monetary liability on all non-governmental parents or guardians, 1 natural or legal, for the malicious and destructive acts of their children, between the ages of 10 and 18, who are in their custody and unemancipated at the time of the damage. This liability is presently limited to the sum of $2,500.00.
In paragraph two, the statute grants an indigent parent or guardian, against whom an award in excess of $1,500.00 has been made, a fact-finding hearing on his financial ability to pay the sums awarded in excess of $1,500.00; and further allows a Court to reduce any such award(s) upon a finding of inability to pay the excess, to the minimum sum of $1,500.00. However, the statute forbids any modification or reduction below the sum of $1,500.00.
Thus, this statute imposes an absolute monetary liability on a parent or legal guardian for the malicious and destructive acts of his minor children within his custody to the sum of $1,500.00--which liability is predicated solely either on the blood relationship, or on the equivalent legal relationship, of parent and child. It also imposes an additional contingent liability, on the same basis, up to the total sum of $2,500.00, on parents and legal guardians who have the financial ability to pay those additional sums.
The statute was not always so monolithic in its terms, and, accordingly, a brief history of the statute is indispensable to an understanding of the legislative intent behind it.
Prior to 1970, New York adhered to the common law rule that parents were not liable for the torts of their children unless they were also guilty of some further act or omission which, in conjunction with the relationship's duties and obligations, caused the damages. Steinberg v. Cauchois, 249 A.D. 518, 293 N.Y.S.2d 147 [2nd Dept. 1937] is the leading case in New York.
Most frequent examples of parental misbehavior at common law were lack of due supervision, entrusting the child with dangerous instrumentalities, or parental failure to safeguard against known vicious propensities in their children.
During the 1960's, however, parental responsibility statutes, enlarging the scope of parents' common law liability, were routinely introduced in the Legislature, and were routinely either killed in committee, or vetoed by Governor Rockefeller. 2 Bill Jacket documents reveal that persistent proponents of these bills were the New York State School Boards Association, seeking fiscal remedies for escalating vandalism in the schools, 3 and the New York State Association of Cemeteries, citing the appalling rise in cemetery maintenance costs due to desecrations by juveniles. 4 Equally persistent opponents comprised the New York State Department of Social Services, who resisted the measures because they would most seriously affect parents who were poor, 5 and the Association of the Bar of the City of New York, whose objections were two-fold: (1) imposing non-fault liabilities on parents and shifting burdens of proof to parents to demonstrate diligence raised constitutional due process issues, and (2) severely limiting the amount of liability (the proposed statute set a limit of $500.00) foreclosed any practical deterrent objectives which the bills sought to achieve. 6
Notwithstanding these prolonged battles, legislation finally emerged in the 1970 session which created a parental liability, in the original sum of no more than $500.00, for malicious and destructive acts of children, whenever the parent had not exercised "due diligence" over the activities of his child. See Laws of 1970 (ch. 993). 7
Since that first enactment, there have been amendments in 1977, 1979, 1981, 1982, and 1985. Many of these amendments simply increased the amount of liability (five-fold in fifteen years); but the 1979 amendment inserted significant changes in the substantive law. That amendment: (1) eliminated the defense of parental due diligence altogether, and (2) reduced the impact, as a defense, of any restitution the juvenile had paid under the Family Court Act, and (3) added the defense of emancipation. See Laws of 1979 (ch. 138).
In 1977, the Legislature had passed original Legislation amending the Executive Law, the General Municipal Law and the Education Law which established parental liability to cities, school districts, and other public agencies, regardless of their due diligence, for damages to public property caused by the malicious and destructive acts of their minor children. These statutes, which imposed absolute parental liability for damage to public property, and denied parents any due diligence defense in specific prohibitive language, although analogous to General Obligations Law § 3-112, are not within the purview of this private property case. But they were, obviously, the precursors to the 1979 amendments of § 3-112 (see L.1977, ch. 478) because they were the first to abolish parental due diligence as a defense. 8
The 1979 bill jacket documents contain commentaries signalling a marked departure in legislative intent from the earlier promulgated objectives of 1970. The legislative emphasis during that decade, superficially at least, appeared to move from the compensatory interests of schools and cemeteries, towards a punitive policy against the parents themselves. The published purpose of the 1979 amendment was to coerce a higher level of consciousness in parents as to their financial obligations when their children damaged the property of others. Senator Levy's sponsoring memorandum states the policy change concisely:
This bill ... will compel the parent to provide greater supervision of his child's activities, and to accept greater (financial) responsibilities for developing the child's respect for the rights and property of others. 9
There are no cases under § 171 of the Executive Law and none under § 78-a of the General Municipal Law. The many 1977 amendments to the Education Law, § 1604(35); § 1709(36); § 2503(18); § 2554(16-b) and § 2590-g(15) have spawned no reported litigation or case decisions. Only the General Obligations Law has generated reported case decisions on these comparable provisions of the Parental Responsibility Act.
In the only pre-1979 case, Izzo v. Gratton, 86 Misc.2d 233, 383 N.Y.S.2d 523 (City Court of...
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Brand v. Toussaint, 2009 NY Slip Op 51929(U) (N.Y. Civ. Ct. 9/14/2009)
...2d 320, 270 NYS2d 427 (Sup. Ct. Queens County 1966); Littenberg v. McNamara, 136 NYS2d 178 (Sup. Ct. Bronx County 1954); Owens v. Ivey, 138 Misc 2d 671, 525 NYS2d 508 (City Ct. Rochester County 1988); Izzo v. Gratton, 86 Misc 2d 233, 383 NYS2d 523 (City Ct. Albany County 1976): Leonard v. O......