Russo v. Osofsky

• Decision Date: 05 August 1985
• Citation: 492 N.Y.S.2d 623,112 A.D.2d 926
• Parties: Richard RUSSO, et al., Appellants, v. Helen OSOFSKY, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 623

492 N.Y.S.2d 623

112 A.D.2d 926

Richard RUSSO, et al., Appellants, v. Helen OSOFSKY, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Aug. 5, 1985.

Finkelstein, Kaplan, Levine, Gittelsohn & Tetenbaum, Newburgh (Duncan W. Clark, Newburgh, of counsel), for appellants.

Louis D. Broccoli, Hartsdale (Allan A. DiSalvo, Hartsdale, of counsel), for respondents.

Before MANGANO, J.P., and GIBBONS, BRACKEN, WEINSTEIN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Dutchess County, entered February 2, 1984, upon a jury verdict in favor of the defendants, dismissing the complaint.

Judgment reversed, on the law, and a new trial granted, with costs to abide the event.

The infant plaintiff sustained burns to his hands when he fell onto a metal heating grate located on premises owned by the defendants. At the time of the injury, the premises were being rented from the defendants by Mr. and Mrs. Travis, who are not parties to this action. Maintenance of the premises was the responsibility of the tenants. Plaintiffs' theory of liability was that the defendants' negligence as lessors and owners had caused the infant's injuries. Judgment was rendered in favor of the defendants upon a jury verdict in their favor, and this appeal followed. We reverse.

Under Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338, a parent has no legally enforceable duty to supervise his children. Since no legal duty to supervise exists, as a matter of law a parent cannot be deemed negligent for failing to do so, or for doing so improperly (Zikely v. Zikely, 98 A.D.2d 815, 470 N.Y.S.2d 33, affd. 62 N.Y.2d 907, 479 N.Y.S.2d 8, 467 N.E.2d 892), and a third party cannot seek contribution from a parent on the basis that an infant's injury was caused, in whole or in part, by the parent's failure to supervise that infant (Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268; Kroupa v. Southampton Hosp., 49 A.D.2d 926, 374 N.Y.S.2d 37). Therefore, the trial court erred in instructing the jury to consider whether the plaintiff mother negligently supervised the infant plaintiff in determining liability both on the infant's cause of action for personal injuries and the mother's derivative action for loss of services (see, Middleton v. Village of Nichols, 114 Misc.2d 596, 452 N.Y.S.2d 157).

Furthermore, in light of Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, the trial court erred in instructing the jury to consider the alleged negligence of Angela Travis, a nonparty, in determining liability. Having failed to implead Mrs. Travis, defendants had no right to have the jury consider her negligence or the lack thereof in determining their liability (see, Stein v. Whitehead, 40 A.D.2d 89, 91, 337 N.Y.S.2d 821).

The confusing nature of the charge precludes us from dismissing the aforementioned errors as harmless. Although the jury found no negligence on the part of the defendants, it is not possible to gauge precisely what effect the jury's consideration of the lack of parental supervision had on their ultimate verdict. The jurors may well have been confused as to what factors to consider in determining defendants' negligence. Accordingly, the judgment appealed from must be...