Smith v. Sapienza

Decision Date15 January 1981
Citation436 N.Y.S.2d 236,417 N.E.2d 530,52 N.Y.2d 82
Parties, 417 N.E.2d 530 William G. SMITH, as Father and Natural Guardian of Christian M. Smith, an Infant, et al., Plaintiffs, v. Joseph F. SAPIENZA et al., Defendants and Third-Party Plaintiffs-Appellants. Heather Smith, an Infant, by William G. Smith, et al., Third-Party Defendants-Respondents.
CourtNew York Court of Appeals Court of Appeals

COOKE, Chief Judge.

The question here, with far-reaching implications in this litigious and societally conscious era, is whether a four-year-old boy may recover against his 10-year-old sister for her negligent supervision of him. It is concluded, for a variety of reasons, that there exists no such cause of action one for negligent supervision between unemancipated minor siblings.

On May 4, 1977, 10-year-old Heather Smith, accompanied by her four-year-old brother Christian, went to deliver Girl Scout cookies to their neighbors, defendants Sapienza. While on defendants' property, Christian was allegedly attacked by defendants' collie. William Smith, the father of Christian and Heather, commenced this action to recover damages on behalf of Christian, as well as his own medical expenses. Defendants in turn brought a third-party action for contribution against William and Heather, alleging negligent failure to supervise Christian.

Special Term granted summary judgment dismissing the third-party complaint. A unanimous Appellate Division, 73 A.D.2d 224, 425 N.Y.S.2d 14, affirmed. This court granted leave to appeal from so much of the Appellate Division order as affirmed dismissal of the complaint against Heather (50 N.Y.2d 913, 431 N.Y.S.2d 523, 409 N.E.2d 995). The issue, then, is whether Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338, which declined to recognize a cause of action by a child against a parent for negligent supervision, also precludes recognition of such a cause of action between siblings.

Analysis of the question must begin with the decision in Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192, in which this court abolished intrafamilial immunity for nonwillful torts. Prior to Gelbman, of course, certain family members enjoyed immunity from liability for tortious injuries inflicted upon other family members (e. g., Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718; Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551). The effect of Gelbman has been to render family members liable "for acts which if done by one ordinary person to another would be torts". McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.L.Rev. 1030; see Holodook v. Spencer, 36 N.Y.2d 35, 43-44, 364 N.Y.S.2d 859, 324 N.E.2d 338, supra; Badigian v. Badigian, supra, 9 N.Y.2d at p. 481, 215 N.Y.S.2d 35, 174 N.E.2d 718 (FULD, J., dissenting)). In addition to normal tort liability, the abrogation of immunity also opened "for exploration the area of duties which exist because of the family relationship, and which, if breached, entail legal consequences" (Holodook v. Spencer, supra, 36 N.Y.2d at p. 44, 364 N.Y.S.2d 859, 324 N.E.2d 338 (emphasis in original)).

Thus, if an action for negligent supervision between siblings had previously existed, it would not now be barred by the immunity doctrine. It is not surprising, however, that the parties have not cited and research has not disclosed any New York case holding one sibling liable to another for negligent supervision. Whatever might have been the rule as to ordinary torts between siblings, there simply is no historical precedent or sound predicate for such a negligent supervision action.

Nor should this court fashion a new theory to impose liability upon a sibling. In the Holodook case, we found compelling policy reasons, essentially the same as those underlying the immunity doctrine, for not creating a supervision action against a parent (id., at pp. 45-46, 364 N.Y.S.2d 859, 324 N.E.2d 338). Many of those same policy considerations militate against recognition of a cause of action for negligent supervision between unemancipated minor siblings.

Recognition of such an action would give rise to Dole claims 1 for contribution against the allegedly errant sibling when the injured child brings an action against the third-party tort-feasor. And, the possibility of Dole claims may dilute or effectively preclude a suit for compensation by the injured child. This is so because the parents, when informed of the potential liability of another child, might well decide to forego legal action. But even if they do not, the damages awarded the injured child are likely to be reduced by the percentage of fault attributable to his or her sibling. Since there is generally in effect but one family treasury, any contribution obtained from the sibling will...

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