Zuckerberg v. Munzer

• Decision Date: 28 March 1950
• Citation: 197 Misc. 791
• Parties: Lucy Zuckerberg, Plaintiff,<BR>v.<BR>Maurice H. Munzer, Defendant.
• Court: New York Supreme Court

197 Misc. 791

Lucy Zuckerberg, Plaintiff,

v.Maurice H. Munzer, Defendant.

MURPHY, J.

March 28, 1950.

Herbert F. Hastings, Jr., for defendant.

Simone N. Gazan for plaintiff.

MURPHY, J.

The defendant here seeks an order dismissing the complaint on the ground that it does not on its face state facts sufficient to constitute a cause of action.

The plaintiff was a domestic and was employed in the home of the defendant. While in such employment the plaintiff alleges that she was attacked by the eight-year-old son of the defendant who inflicted serious injuries upon her with a baseball bat. The complaint further alleges that the assault and injuries were not provoked by her nor were they due to her fault, but were due to the conduct of the infant whose habits and tendencies to common assaults were well known to the defendant. She further alleges that the child had frequently assaulted his own mother and others; and that the defendant did not disclose or warn her of the dangerous propensities of the child at the time of her employment or at any time thereafter. The plaintiff further alleges that the defendant had knowledge of the alleged vicious propensities and cruel conduct of his infant son and permitted the latter to have in his possession a baseball bat which, she says, in the hands of said infant was a dangerous instrument. The complaint further alleges that the defendant omitted to restrain the freedom of the child and neglected to take proper measures to prevent the plaintiff from being injured. The complaint demands substantial damages.

In the case of Steinberg v. Cauchois (249 App. Div. 518, 519) the court in a per curiam decision stated as follows: "The parent is not liable, merely by reason of his or her relationship, for the torts of the child. (Tifft v. Tifft, 4 Den. 175; McCarthy v. Heiselman, 140 App. Div. 240; Schultz v. Morrison, 91 Misc. 248; affd., 172 App. Div. 940; Frellesen v. Colburn, 156 Misc. 254.) `Unless made so by statute, there is no liability on the part of a parent, as such, for the tort of a child. The child * * * is, in general, liable for his own tort.' (Harper's Law of Torts, § 283.) There are situations in which the parent may be held liable: (1) Where the relationship of master and servant exists and the child is acting within the scope of his authority accorded by the parent; (2) where a parent is negligent in intrusting to the child an instrument which, because of its nature, use and purpose, is so dangerous as to...