Thurel v. Varghese

• Decision Date: 17 January 1995
• Citation: 207 A.D.2d 220,621 N.Y.S.2d 633
• Parties: Magalie Baptiste THUREL, Individually and as Administratrix of the Estate of Ralph Thurel, Deceased, et al., Respondent, v. Mathews VARGHESE, et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 633

621 N.Y.S.2d 633

207 A.D.2d 220

Magalie Baptiste THUREL, Individually and as Administratrix of the Estate of Ralph Thurel, Deceased, et al., Respondent, v. Mathews VARGHESE, et al., Appellants, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

Jan. 17, 1995.

Maroney, Ponzini & Spencer, Tarrytown (Marianne Stecich, of counsel), for appellants.

Seymour C. Hartman, Brooklyn (Norman S. Goldsmith, of counsel), for respondent.

Before BRACKEN, J.P., and SANTUCCI, KRAUSMAN and GOLDSTEIN, JJ.

SANTUCCI, Justice.

On this appeal we deal with the novel issue of whether a mother who chooses to hold her two-month-old infant son in her arms while riding as a passenger in the back seat of a car, may be held liable for comparative negligence when the child is killed as a result of an automobile accident. Under the circumstances presented herein we find that such a claim does not present a cognizable cause of action under the current state of New York law.

The factual background to this appeal presents a tragic scenario. On October 4, 1991, the plaintiffs Magalie Thurel (hereinafter the mother) and her two-month-old son, Ralph Thurel (hereinafter the infant), were passengers in a car being driven by the defendant Vaugel Thurel, the husband and father. At the time of the accident the mother was sitting in the rear seat of the car holding her son in her arms. The appellants allege that the Thurel car contained a child safety seat but that it was not being utilized at the time of the accident. The Thurel car collided with a car being driven by the defendant Binesh Mathews, and owned by the defendant Mathews Varghese. When the cars collided, the infant was ejected from his mother's arms and thrown through the car window and onto the pavement, suffering injuries that resulted in his death.

In the course of the lawsuit brought against the appellants by the mother (in her own behalf and on behalf of the estate of the deceased infant), the appellants interposed an answer asserting counterclaims seeking contribution from the mother and the father. The counterclaim against the mother, at issue here, asserted that the infant's injuries and death "were caused or contributed to by the negligent and culpable conduct of [the mother in] * * * fail[ing] to properly and legally restrain the infant plaintiff in a specially designed detachable or removable child safety seat".

The mother moved to dismiss the counterclaim arguing that it was actually one for negligent supervision, and that such a claim fails to state a cause of action since negligent supervision is not a tort recognized by the courts of this State (see, Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338).

The appellants opposed the motion, arguing that the counterclaim sounded in negligence "which would otherwise be actionable outside of the familial relationship", and not in negligent supervision. Therefore, the appellants concluded that their claim for contribution was not precluded under the "familial immunity doctrine".

The Supreme Court agreed with the mother's argument and dismissed the counterclaim. The defendants Varghese and Mathews now appeal.

It is now well settled that there is no legally cognizable cause of action to recover damages for injuries suffered by a minor child against his or her parents for negligent supervision (Holodook v. Spencer, supra; Hadden v. Kero-Sun, 197 A.D.2d 668, 602 N.Y.S.2d 880; Pravato v. Pravato, 175 A.D.2d 116, 571 N.Y.S.2d 811; Parsons v. Wham-O, Inc., 150 A.D.2d 435, 541 N.Y.S.2d 44). In addition, where a secondary right of contribution is dependent upon "the parent's alleged failure to perform a duty owing to the [infant] plaintiff * * * the absence of the primary cause of action defeats [a] counterclaim" (Holodook v. Spencer, supra, 36 N.Y.2d at 51, 364 N.Y.S.2d 859, 324 N.E.2d 338).

The appellants argue that the holding in the Holodook case does not operate to bar their counterclaim since the mother's obligation to place her child in a car safety seat was a duty which she owed regardless of the familial relationship, and thus ordinary principles of negligence are applicable. It is true that "a child * * * has a viable cause of action against its parent based on the parent's negligent act which breaches a duty owed to the world at large" (Hurst v. Titus, 77 A.D.2d 157, 158, 432 N.Y.S.2d 938). For example, in the case of Grivas v. Grivas, 113 A.D.2d 264, 496 N.Y.S.2d 757, this court held that where a child was injured as a result of his parent leaving a running electric lawnmower unattended, the breach of duty of reasonable care with respect to a dangerous instrumentality was one owed to any third party. Thus, the Grivas child had a valid negligence cause of action against his parent, and the family relationship was purely incidental. Similarly, in the case of Semmens v. Hopper, 128 A.D.2d 767, 513 N.Y.S.2d 472, this court found that where a child is injured as a result of accessibility to a swimming pool, there is at least a question of fact as to whether the parent's breach of the duty to exercise reasonable care with respect to such accessibility is a duty owed to the world at large (i.e., separate and apart from the family relationship). Thus, the child in the Semmens case may have had a...