Wheeler v. Bello

• Citation: 357 N.Y.S.2d 818,78 Misc.2d 540
• Parties: James WHEELER, an infant, and Raymond J. Wheeler, his parent and natural guardian, Plaintiffs, v. David BELLO, an infant, and Dominick Bello, his parent and natural guardian, Defendants.
• Decision Date: 16 July 1974
• Court: United States State Supreme Court (New York)

Page 818

357 N.Y.S.2d 818

78 Misc.2d 540

James WHEELER, an infant, and Raymond J. Wheeler, his parent and natural guardian, Plaintiffs, v. David BELLO, an infant, and Dominick Bello, his parent and natural guardian, Defendants.

Supreme Court, Onondaga County.

July 16, 1974.

Surgarman, Wallace, Manheim & Schoenwald, Syracuse, for plaintiffs.

Hancock, Estabrook, Ryan, Shove & Hust, Syracuse, for defendants.

LEO F. HAYES, Justice.

DECISION

On April 25, 1973, infant plaintiff, James Wheeler, age 12, was allegedly shot in the eye by a BB from an air gun fired by the infant defendant, David Bello, who was at that time 13 years of age. Raymond J. Wheeler, father of the injured infant, James Wheeler, has commenced this action for damages individually and on behalf of his infant son against David Bellow and David's natural guardian, Dominick Bello. The defendants have interposed a counterclaim seeking recovery from Raymond J. Wheeler under the theory of Dole v. Dow Chemical, 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288. Plaintiffs have brought on this motion seeking an order pursuant to § 3211(7) of the CPLR dismissing the counterclaim of the defendants against the plaintiff, Raymond J. Wheeler, contending that the counterclaim does not state a cause of action. Plaintiffs refer to the recent decision of Holodook v. Spencer, 43 A.D.2d 129, 350 N.Y.S.2d 199, claiming that the parent's failure to supervise does not state a cause of action and, therefore, defendants' counterclaim should be dismissed.

From the moving papers a short history of the air gun in question is most important. Defendants allege that the air gun was purchased for the infant plaintiff, James Wheeler, by his father, Raymond J. Wheeler, at Christmas time, 1972, and that it was turned over to and/or given to the infant plaintiff by his father at or about that time, with no restrictions on its use. Defendants further contend that on the 25th day of April, 1973, the infant plaintiff, together with one or more infant companions, were using infant plaintiff's air gun and pellets furnished to him by his father for the purpose of shooting frogs. At some time during that day the gun was handed by the infant plaintiff to the infant defendant and shortly thereafter the infant defendant either intentionally or accidentally fired the air gun in the direction of the infant plaintiff and the pellet entered the infant plaintiff's right eye allegedly causing the damages for which this action was brought.

In reviewing the present status of the law from Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 up to the present time, it is interesting to note that decisions following Gelbman have abolished the intra-family tort immunity theory in New York State. However, in interpreting the Gelbman decision, the Appellate Division has held in Holodook v. Spencer (supra) that mere lack of supervision by a parent toward his child is not an actionable tort:

'There can be no basis for a claim against the parent by such tort-feasor for contribution based merely on an alleged lack of supervision.' (43 A.D.2d at p. 137, 350 N.Y.S.2d at p. 207.)

The Holodook case involved a four-year old child who was injured when he was struck by an automobile while running from between parked cars. The operator of the motor vehicle was sued by the injured child's father, acting both in his own behalf and as natural guardian of the injured infant. The defendant counterclaimed against the child's father, and initiated a third-party complaint against the child's mother, seeking indemnification on the ground that the parents' negligence in failing to provide for the child's proper care and instruction and in leaving him in such circumstances that he ran from between the parked cars and collided with defendant's vehicle, was a proximate cause of the accident. The Appellate Division held that the Supreme Court, Special Term, had improperly denied a motion to dismiss the counterclaim and third-party complaint. In so holding, the reviewing court noted: (p. 135, 350 N.Y.S.2d p. 204)

'The duty to supervise a child in his daily activities has as its objective the fostering of physical, emotional and intellectual development, and is one whose enforcement can depend only on love. Each child is different, as is each parent; as to the former, some are to be pampered while some thrive on independence; as to the latter, some trust in their children to use care, others are very cautious. Considering the different economic, educational, cultural, ethnic and religious backgrounds which must prevail, there are so many combinations and permutations or parent-child relationships that may result that the search for a standard would necessarily be in vain--and properly so. Supervision is uniquely a matter for the exercise of judgment. For this reason parents have always had the right to determine how much independence, supervision and control a child should have, and to best judge the character and extent of development of their child.'

The theory that lack of supervision is a non-actionable tort was also sustained in Lastowski v. Norge...