Ryan v. Fahey

Citation352 N.Y.S.2d 283,43 A.D.2d 429
PartiesJohn Michael RYAN, an infant, by Francis Ryan, his parent, and Francis Ryan, Individually, Respondents, v. Timothy FAHEY and Patricia Fahey, Respondents, and Barbara L. Ryan, Appellant.
Decision Date22 February 1974
CourtNew York Supreme Court Appellate Division

Bouck, Holloway & Kiernan, Albany, for appellant; Francis J. Holloway, Albany, of counsel.

Boyle, Lipski & McLane, Auburn, for respondents Fahey; P. Alex Lipski, Auburn, of counsel.

Richard N. Cosentino, Weedsport, for respondents Ryan.

Before DEL VECCHIO, J.P., and MARSH, WITMER, MOULE and SIMONS, JJ.

OPINION

MOULE, Justice.

The question we are here called upon to decide is whether a non sui juris child, injured while at play, can bring a lawsuit against his mother for failing to properly supervise his activities. In so doing, we must determine whether such an action was within the contemplation of the Court of Appeals in Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 when it abolished the defense of intrafamilial immunity from suit on nonwillful torts. In our view, it was not.

We have before us a situation in which the plaintiff, a three-year old boy, was playing in the backyard of a neighbor's home when the neighbor's eight-year old son ran over his hand with a power-driven riding lawnmower. The infant plaintiff's mother and the neighbor were in the neighbor's house at the time and, as a result of the accident, plaintiff, with his father serving as guardian ad litem, commenced an action in negligence against his mother, the neighbor and her son. In the complaint, $500,000 damages was demanded for the infant and $10,000 in derivative damages was demanded for the father. It was alleged that the mother's acts of negligence consisted of her failure to properly supervise the infant plaintiff while at play, and that the neighbor's acts consisted of failing to properly supervise and control her son in his operation of the power lawnmower. The neighbor cross-claimed against the mother for an apportionment of damages under Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 and the mother then moved at Special Term to dismiss her son's and husband's complaint on the ground that it failed to state a cause of action. This appeal results from Special Term's denial of that motion and, thus, opens for scrutiny the whole issue of just how far the law should go in permitting suits by children against their parents.

Until the Court of Appeals' decision in Gelbman v. Gelbman, Supra, the law of this State was that a child could not sue his parent in an action based on the parent's negligence upon the principle broadly known as intrafamilial immunity. This was first applied in Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551, an automobile accident case in which an infant passenger was injured in a collision caused by his parent's careless driving. Cases in many other jurisdictions followed the same principle; some in suits involving intentional as well as unintentional torts (Taubert v. Taubert, 103 Minn. 247, 114 N.W. 763; Hewlett v. George, 68 Miss. 703, 9 So. 885; Small v. Morrison, 185 N.C. 577, 118 S.E. 12; Matarese v. Matarese, 47 R.I. 131, 131 A. 198; McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664; Roller v. Roller, 37 Wash. 242, 79 P. 788; Wick v. Wick, 192 Wis. 260, 212 N.W. 787). The basic rationale for the rule was that the family should be considered a unique social unit, the rock upon which the entire fabric of society is founded, and that to permit suits between its members would disrupt its unity and harmony (Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718).

The rule expressed in Sorrentino was twice reaffirmed by the Court of Appeals, each time in cases involving automobile accidents (Badigian v. Badigian, Supra; Cannon v. Cannon, 287 N.Y. 425, 40 N.E.2d 236). However, a child could always sue his parent for injury to his property (Lamb v. Lamb, 146 N.Y. 317, 41 N.E. 26) and immunity did not protect a parent who engaged in willful misconduct toward his child (Cannon v. Cannon, Supra). Additionally, in some jurisdictions, a child could recover from his parent indirectly for torts committed by the parent in the course of his employment by suing the employer who then sued his parent for indemnification (Chase v. New Haven Waste Material Corp., 111 Conn. 377, 150 A. 107; Briggs v. City of Philadelphia, 112 Pa.Super. 50, 170 A. 871) and, in others, the child could sue his parent directly in such situations (Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905; Signs v. Signs, 156 Ohio St. 566, 103 N.E.2d 743; Worrell v. Worrell, 174 Va. 11, 4 S.E.2d 343; Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149; Lusk v. Lusk, 113 W.Va. 17, 166 S.E. 538). These exceptions to the immunity rule made it difficult to rationalize the validity of its stated purpose and led Judge Stanley H. Fuld, in a lengthy dissent in the Badigian case, to conclude that the doctrine in its broadest sense had become so emasculated that it was no longer viable and should be abolished.

In his dissent in Badigian, Judge Fuld advanced many reasons why the rule should be discarded. One by one he dismissed arguments that it was needed to preserve family harmony, that the law should not invade the family unit, that it was needed to prevent collusion between family members to collect insurance proceeds, or that, in the absence of insurance, it was needed to protect the family from depletion of its assets. In so doing, however, he expressly recognized that while the immunity doctrine could well be abrogated in most situations, it could never entirely be cast aside, and that in certain instances involving duties and responsibilities inherent in, and unique to, the family relationship, it ought to be retained. He stated at pp. 480--481 of 9 N.Y.2d, at p. 42 of 215 N.Y.S.2d, at p. 723 of 174 N.E.2d:

'The decision to be made herein has little, if anything, to do with a case where the child is injured in the kitchen or in some other room making up the family establishment. There may be injustice, as well as difficulty in applying the standardized duty of the reasonable man in such a situation. * * * In the ordering of the home, the father is still the judge, or, better perhaps, the king, not liable for error while he acts in good faith, without malice or indifference.

'* * * we should not be deterred in pursuing such a course (abolishing the immunity defense) by a fear that decision in this case will be binding in cases--which may never eventuate--involving household accidents.'

It was Judge Fuld's dissent in Badigian that formed the basis for the court's majority opinion in Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192, Supra when seven years later, in still another automobile liability case, it finally laid the immunity doctrine to rest. Significantly, however, the court in Gelbman stated:

'By abolishing the defense of intrafamily tort immunity for nonwillful torts, we are not creating liability where none previously existed. Rather, we are permitting recovery, previously denied, after the liability has been established.' (23 N.Y.2d 434, 439, 297 N.Y.S.2d 529, 532, 245 N.E.2d 192, 194.)

This is the language that has caused a great deal of controversy and its meaning really lies at the heart of the case now before us. We believe that the court in using this language had Judge Fuld's dissent in the Badigian case in mind and accepted the principle it set forth, and that Judge Fuld's concurrence in Gelbman indicates that to be so. We do not believe that Gelbman holds that within the family relationship the failure of a parent to properly discipline his child, to instruct him as to the pitfalls of the world around him, to provide for his general comfort and well-being, or to diligently supervise his activities so as to protect him from accidental injury should be the basis for an actionable form of misconduct in the State of New York. We know of no Court of Appeals or Appellate Division case, nor any statute, expressly authorizing or allowing a suit by a child against his parent for such failings.

In brief, and with the narrow question presented by the case before us specifically in mind, we hold that negligent supervision is not a tort. It was not a tort prior to the Gelbman case and by Gelbman's own terms, its holding was not meant to create liability where none previously existed. Cases cited to the contrary (Kupchinsky v. Vacuum Oil Co., 263 N.Y. 128, 188 N.E. 278; Serano v. New York Central and Hudson River R.R. Co., 188 N.Y. 156, 80 N.E. 1025; Weil v. Dry Dock, East Broadway and Battery R.R. Co., 119 N.Y. 147, 23 N.E. 487; Birkett v. Knickerbocker Ice Co., 110 N.Y. 504, 18 N.E. 108; Kunz v. City of Troy, 104 N.Y. 343, 10 N.E. 442; McGarry v. Loomis, 63 N.Y. 104; Ihl v. Forty-Second St. and Grand St. Ferry R.R. Co., 47 N.Y. 317; Mangam v. Brooklyn R.R. Co., 38 N.Y. 455; Hartfield v. Roper and Newell, 21 Wend. 615; Ryczko v. Klenotich, 204 App.Div. 693, 198 N.Y.S. 473; Dehmann v. Beck, 61 App.Div. 505, 70 N.Y.S. 29; Barry v. Second-Ave. R.R. Co., Com. Pleas, 16 N.Y.S. 518) are clearly inapposite. All involve the duty owed by a parent to a third party, not to his child, and hold that where a Non sui juris infant sues the third party for injuries sustained as a result of an accident, contributory negligence on the part of the child's parent in allowing him to be exposed to a given hazard, is imputed to the child and bars his recovery. It is noteworthy that the imputed negligence rule under which these cases were decided was abrogated by statute in 1935 with the enactment of Domestic Relations Law, § 73, the forerunner of General Obligations Law, § 3--111. None of the cases cited above allows a child to sue his parent directly for negligent supervision. Since Sorrentino (248 N.Y. 626, 162 N.E. 551, Supra) was decided in 1928, a suit on this basis could not be enforced...

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