in his dissent states: “ Transposed to the parent-child relationship in the family, the rule of liability logically should therefore be whether the parent acted as a reasonable parent would have acted under the circumstances. TMs was the rule adopted in California (Gibson v. Gibson, 3 Cal. 3d 914, supra), which, in my opinion, best fits the factual and legal patterns implicit in the family structure.” (P. 142)
I can think of no better answer to that contention than to quote from Judge Fuld’s dissent in Badigian v. Badigian (9 N Y 2d 472, 481, supra), the sense of wMch was adopted by the court in Gelbman (supra). He had this to say on that subject (pp. 480-481): “ There maybe injustice, as well as difficulty, in applying the standardized duty of the reasonable man in such a situation. Heed, it may well be, must be given to excuses to which the law declines to listen when the victim is a business visitor. The house or the apartment may be out of order or in need of repair, but, there is force to the query, what is the father to do if there is no money to repair it? It may be unsanitary and in poor condition, but it is futile to seek a better one when it is beyond the father’s financial ability to pay the higher rent. Those who share the family life must of necessity share its fortunes, its privations and hardships, as well as its gains. * * * 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.”
Justice Greenblott,speaking for the majority in Holodook v. Spencer (43 A D 2d 129, 135, supra), pointed to still other variables which make it improper to submit to a jury the reasonableness of the action of a parent on a charge of lack of supervision when he said: “ Each child is different as is each parent; as to the former, some are to be pampered while some *135thrive 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 of parent-child relationships that may result that the search for a standard would necessarily be in vain—and properly so * * * Surely there can be no place in such a natural scheme for second-guessing by a jury whose members’ views on the subject will be unavoidably influenced by their own unique and inimitable experiences, both as children and parents.”
In Ryan v. Fahey (43 A D 2d 429, 430, supra) Mr. Justice Moule, writing for a unanimous court, posed the question before the court and gave its answer in the following manner: “ 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 1ST Y 2d 434) when it abolished the defense of intrafamilial immunity from suit on nonwillful torts. In our view, it was not.”
In that case the factual picture, as set forth in the opinion, was as follows (pp. 430-431): “ 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 lawn mower. 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 lawn mower. The neighbor cross-claimed against the mother for an apportionment of damages under Dole v. Dow Chem. Co. (30 N Y 2d 143) 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 *136law should go in permitting suits by children against their parents.”
In giving the reasons for his conclusion, Justice Mottle said (p. 433): “ 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. ’ ’
We think that Holodook and Ryan (supra) completely and conclusively demolish any contention that Gelbman (supra), as amplified by Dole (supra), sanctions the lack of parental supervision counterclaim here interposed, but I think that one further word is appropriate. Justice Hopkins contends that the standard of negligence he proposes 11 promotes flexibility and is not fettered by built-in conditions which alike may be difficult of application and inappropriate under certain circumstances.” But the fact is that his proposed standard, the “ fictional ” reasonable parent, is so “ flexible ” as to constitute no standard at all, depending as it would have to on innumerable variables such as the number and ages of the children and the differing economic, educational, cultural, ethnic, religious, physical, social and health background of the particular family involved.5
CONCLUSION.
To uphold the creation of a cause of action based upon parental lack of supervision, by reliance upon the courageous and progressive changes in the law brought about by Gelbman and Dole {supra), would involve an egregious perversion of their purpose. It would draw the parent-child relationship, based *137so essentially on mutual love and concern and trust, into the reefs, shallows, tides and whirlpools of litigation in a manner which could only result in an in terrorem effect on even the most conscientious parent. We cannot believe that the court which framed Gelbmcm and Dole (swpra) would permit their use to sow such dragon’s teeth.
The order appealed from should be reversed, on the law, with $20 costs and disbursements, and the plaintiffs’ motion to dismiss the defendants’ counterclaim against the plaintiff parent should be granted.
Hopkins, J. (dissenting). The question on this appeal results from the consequences of two recent decisions of the Court of Appeals in Gelbman v. Gelbman (23 N Y 2d 434) and Dole v. Dow Chem. Co. (30 N Y 2d 143): may a tort-feasor sued by an infant and his parent interpose a counterclaim against the parent on the ground that the parent’s lack Of proper supervision was a concurrent cause of the infant’s injuries? The dimensions of the question have been clearly defined in the perceptive opinions of Justice Gbeenbeott, speaking for the majority, and of Justice Stabey, dissenting, in Holodook v. Spencer (43 A D 2d 129) and Gramey v. Gramey (43 A D 2d 207). (See, also, Ryan v. Fahey, 43 A D 2d 429.)
Since a question of pleading alone is before us, the allegations must be taken as true and enveloped with the benefit of every reasonable inference in their favor (Cohn v. Lionel Corp., 21 N Y 2d 559, 562). The plaintiffs on this appeal do not adopt the theory of an absolute denial of all liability of a parent to his child for failure to supervise, which the majority in HolodooTc and Grcmey (supra) espoused; instead, it is the plaintiffs’ position that the counterclaim is deficient because it does not state that the plaintiff infant “ was in need of unusual supervision or that he was in some way mentally or physically disabled.” Though the complaint and answer do not allege the age of the infant, both the plaintiffs’ and the defendants’ briefs assert that he was four years old at the time of the accident. In view of the age of the infant, the pleading should not be dismissed, even on the limited ground urged. Surely, a child of four, on the borderline of non sui juris (cf. Schaffner v. Rockmacher, 38 A D 2d 835; Dugan v. Dieber, 32 A D 2d 815), requires unusual supervision as a necessary implication of his condition and age. The order could therefore be affirmed for this reason alone.
But I prefecto meet the issue squarely, as the court acted in HolodooTc and Graney (supra). There are, I think, several *138choices of rules open to the court. We might reject the notion of liability based on lack of proper supervision, as did the majority in Holodook and Graney (supra). We might accept the notion of liability arising from inadequate supervision, but only if that liability flowed from designated areas of the relationship between parent and child, such as stated in the rule constructed by the Wisconsin Supreme Court and followed by other courts (e.g., Goller v. White, 20 Wis. 2d 402; Plumley v. Klein, 388 Mich; 1; Silesky v. Kelman, 281 Minn. 431; Streenz v. Streenz, 106 Ariz. 86). We might accept broadly the notion of liability for failure of supervision, but impose a standard measured by the care exercisable by a reasonable parent under the circumstances existing in the particular case—a rule formulated by the California Supreme Court (e.g., Gibson v. Gibson, 3 Cal. 3d 914). Bach of these notions has varying advantages and disadvantages, and each must be examined separately.1
I
SHOULD LACK OF PARENTAL SUPERVISION BE A TORT?
Gelbman v. Gelbman (23 N Y 2d 434, supra) neither precluded the lack of parental supervision as a ground for liability nor approved it. It merely abolished the defense of parental immunity and permitted “ recovery, previously denied, after the liability has been established ’ ’ (id., p. 439). It refers specifically to recovery for “ nonwillful negligent acts ” (id., p. 438). The action itself was not to recover damages on behalf of a child against his parent; it was the reverse — the parent sued the child to recover damages for the child’s negligence in operating an automobile. Nevertheless, the stress of Gelbman imposes liability for negligence in any intrafamily accident.
The issue of the negligence of a parent in attending to the care of a child, doubtless on account of the intervention of the intrafamily immunity, usually was intertwined with the issue of the child’s own negligence (cf. Kupchinsky v. Vacuum Oil Co., 263 N. Y. 128; Regan v. International Ry. Co., 205 App. Div. 425; Ryczko v. Klenotich, 204 App. Div. 693), sometimes on the theory of imputed negligence—a defense to an action on behalf of the child not sustainable in most jurisdictions (Ann. 51 *139A, L. R. 209; cf. General Obligations Law, § 3-111). Nonetheless, that the negligence of the parent in caring for the child was a recognized breach of duty owing to the child was not seriously disputed (see, e.g., Longacre v. Yonkers R. R. Co., 236 N. Y. 119). It was customarily treated as a matter of fact for the jury.2
Thus, the reach of the duty of supervision was embodied in the following language of the Court of Appeals in a case decided in 1868 (Mangam v. Brooklyn R. R. Co., 38 N. Y. 455, 457): “ Legal negligence is the omission of such care as persons of ordinary prudence exercise and deem adequate to the circumstances of the case. This definition, applied to the point in consideration, will exonerate the parents from the charge of negligence, if they used that degree of care. This conclusion is also supported by the reasoning in Hartfield v. Roper [21 Wend. 615]. It is there said, that the law has placed infants in the hands of vigilant and generally affectionate keepers, their own parents, and-if there be any legal responsibility for damages, it lies on them. Surely, an infant could "not recover against his parent or guardian, for negligence in permitting him to escape into the street, unless he could show some omission of ordinary care to prevent it. The inquiry on this point, then, is, whether the parents of the plaintiff were guilty of negligence, in permitting him to get into the street; for, if not, the nonsuit cannot be sustained upon that ground.”
Because of the immunity created by the court, the liability could not be enforced by the infant against the parent. However, it seems clear that the duty of supervision existed in our early law. The imputation of the parent’s negligence to the child to defeat a recovery for the child’s injuries was increasingly subjected to criticism, for the reason that the rule visited the punishment on the child for the sins of the parent; and the rule was finally extinguished by the statute (General Obligations Law, § 3-111).3
Following Gelbman (supra), several decisions have recognized negligent supervision by a parent as a ground for *140liability (e.g., Sorrentino v. United States, 344 F. Supp. 1308; Hairston v. Broadwater, 73 Misc 2d 523; Meade v. Roberts, 71 Misc 2d 120). In States in which the defense of parental immunity has been, abrogated, the infant’s right to recover for failure of supervision has similarly been acknowledged (e.g., Cole v. Sears, Roebuck & Co., 47 Wis. 2d 629; Thoreson v. Milwaukee & Suburban Transp. Corp., 56 Wis. 2d 231; Thomas v. Kells, 53 Wis. 2d 141; cf. Petersen v. City and County of Honolulu, 51 Hawaii 484; Gibson v. Gibson, 3 Cal. 3d 914, supra).
Since Gelbman (supra) terminated-the intrafamilial immunity, the duty of supervision still continues unconfined by that defense, unless we are to say that public policy forbids now the enforcement of the duty. Sound judicial process commands us to consider whether the disadvantages of enforcement outweigh the advantages (cf. Tobin v. Grossman, 24 N Y 2d 609, 615-619).
It is probable that no child will sue his parent for any unintentional tort, unless insurance is present protecting the parent. This is the ordinary result of the close relationship between the parties; the natural affection would first preclude a suit and, of course, one cannot overlook the practicality that the parent, as the person who usually institutes the suit, would hardly make himself an adversary liable to payment of damages. Neither of these factors is a valid ground for refusing recovery to a child who has suffered injury as the result of the lack of supervision of the parent. The other reasons customarily offered to prevent liability—the loss to the family exchequer, the destruction of family harmony, the danger of collusion — are beyond debate now, as all of them were considered unavailing as grounds for the intrafamilial immunity in Gelbman (supra).
Dole v. Dow Chem. Co. (30 N Y ,2d 143, supra) provides a reason against an immunity remaining on behalf of the parent when sued by a defendant said to have been negligent in causing an injury to the child. That reason is that it is not just to burden the defendant, even though negligent, with all the burden of the damages, if the parent’s negligence contributed to the injury. The child is not punished for the parent’s sins by the adoption of this rule, for the child will receive the benefit of the whole recovery. If the parent is punished by the apportionment of the recovery, it is because of his own conduct and the inequity of allowing him. to escape scot-free at the expense of the joint tort-feasor.
Accordingly, I think, as did Justice Staley in his dissent in Graney v. Graney (43 A D 2d 207, supra), that the immunity *141of a parent from suit based on Ms negligence toward Ms child has been totally removed by Gelbman (supra). Once the parent’s duty to care for and supervise the child is established as part of the parent’s general responsibility, then it must follow that the negligent, discharge of that duty—as it follows in the instance of any other legal duty—results in liability for the damages ensuing.
n
SHOULD THE BULE OF LIABILITY BE LIMITED TO CERTAIN ABBAS OF SUPERVISION?
Wisconsin, in abolishing the doctrine of parental immunity, did not extend liability , to the entire sphere of the family relationsMp. It carved out two areas of exceptions to liability: (1) where the negligent act involved an exercise of1 reasonable parental authority over the child and (2) where the negligent act involved an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care (Goller v. White, 20 Wis. 2d 402, 413, supra). It is unquestionably desirable and, indeed, a goal of the common law, that a rule imposing liability be as certain and definite as possible. The presence of exceptions, particularly those phrased in vague and abstract terms, breeds uncertainty in a rule.
The experience in Wisconsin bears out tMs prophecy. In Lemmen v. Servais (39 Wis. 2d 75) a six-year-old child was struck by an automobile wMle crossing the street after alighting from a school bus. The defendant driver served a third-party complaint against the parents, claiming that they had failed to instruct the child properly concerning safety procedures. The court held that the failure fell witMn the exception of the exercise of ordinary parental discretion with respect to “ other care ” (p. 78) of the cMld. But in Cole v. Sears, Roebuck & Co. (47 Wis. 2d 629, supra) a two-year-old child was injured while playing on a swing, and the court held that the failure to provide proper supervision by the parent did not come within the exceptions. And in Thoreson v. Milwaukee $ Suburban Transp. Corp. (56 Wis. 2d 231, supra), where a three-year-old child ran out in front of a bus and was hit, causing a substantial injury, the mother of the cMld was held to be liable for 40% of the damages as a result of her liability arising from failure to exercise proper supervision over the child. The court found that the exceptions did not embrace the ordinary parental acts of upbringing.
*142The difficulties inherent in the application of the exceptions under the Wisconsin rule are illustrated in Thomas v. Kells (53 Wis. 2d 141, supra). 'A child lived with his family in the first floor apartment of a duplex. A stairway ran in the rear of the building between the basement and the attic and was used in common by both the first and second floor tenants. The child fell on the stairway and an action was brought in his behalf in which it was alleged that the landlord had permitted the stairway to become defective. The landlord served a third-party complaint on the parents, claiming that they had contributed to the accident because they had failed to care properly for the child. The trial court sustained a demurrer to the landlord’s pleading, finding that the accident occurred in the home and therefore the exceptions applied. The Wisconsin Supreme Court reversed, holding that a trial would be necessary to prove whether the conditions of the home and the building justified the invocation of the exceptions.4 The court decided that one of the issues was whether the stairway could fairly be said to be within the provision of housing vested in the parents’ discretion.
It is far more desirable that a simpler and more understandable rule be fashioned. In New York, as Gelbman v. Gelbman (23 N Y 2d 434, 437-438, supra) teaches, the former rule of immunity has been breached by various exceptions leading to anomalies. A rule should not be installed in place of another which will achieve unsatisfactory results—the very reason for which the change in rule was made.
III
SHOULD THE BULB BE BASED ON THE STANDARD OB A REASONABLE PARENT?
The standard by which negligent behavior has been traditionally measured is that of the reasonable person acting under the circumstances of the case. Transposed to the parent-child relationship in the family, the rule of liability logically should therefore be whether the parent acted as a reasonable parent would have acted under the circumstances. This was the rule adopted in California (Gibson v. Gibson, 3 Cal. 3d 914, supra), which, in my opinion, best fits the factual and legal patterns implicit in the family structure.
*143For one thing, it takes into account, without special reference the issue raised by the plaintiffs on this appeal, i.e., that it must be shown that the infant was in need of unusual supervision or was in some way handicapped. It also includes, without any required mention, the issue of age span during which a reasonable and prudent parent might be expected to exercise supervision and control. These issues would be left to the trier of the facts under a rule which would allow complete consideration of the role of the parent under the facts of the case.
Moreover, the rule extends broad scope to the trier of1 the facts to enforce community standards and current family practices in the case at hand. The rule, in short, promotes flexibility and is not fettered by built-in conditions which alike may be difficult of application and inappropriate under certain circumstances.
The rule, too, accommodates the reluctance to overtax the parent with a duty that cannot easily be met, to which the exceptions to the Wisconsin rule can undoubtedly be traced. The conditions in the family and home can be individually weighed to accomplish a fair balancing of all the components present.
Finally, the rule would accord with the spirit of fairness which Dole v. Dow Chem. Co. (30 N Y 2d 143, supra) embraces. “ Bight to apportionment of liability or to full indemnity, then, as among parties involved together in causing damage by negligence, should rest on relative responsibility and to be determined on the facts ” (id., p. 153). A parent adjudged to be negligent because he did not act as a reasonable parent would have under the circumstances should not escape his burden of the apportionment of damages caused by his negligence and the negligence of another concurring to cause injury to his child. Conversely, the entire responsibility of the injury to the child should not be thrust on the stranger, where the parent’s negligence to some degree participated in the incident.
In the light of1 all these factors, consequently, I would hold that the pleading of the defendants is sufficient to raise the issue of the plaintiff father’s negligence, for the trial, and that at the trial the issue of the father’s negligence should be determined by the rule whether his conduct accorded with what a reasonable parent would have done under similar circumstances.
For the reasons stated, I dissent and vote to affirm.
. On this phase of the ease Presiding Justice Gtjlotta apparently disagrees with Justice Hopkins, for he says: “ With the policy reasons for not applying the standardized duty of the reasonable prudent man to household situations involving a parent-child relationship alluded to by Judge Fuld in Badigian (supra) and Justice Shapiro in this case, I find myself in agreement.”
. There is a fourth choice which we consider impermissible—that we return to the notion of parental immunity for all tortious conduct toward a child. Some courts have clung to this rule in the face of the trend to abolish the immunity (e.g., Chase v. Greyhound Lines, 195 S. E. 2d 810 [W. Va.]; Bahr v. Bahr, 478 S. W. 2d 400 [Mo.]). We consider this approach to be irrelevant in New York after Gelbman v. Gelbman (23 N Y 2d 434, supra).
. Thus, in Longacre v. Yonkers R. R. Co. (236 N. Y. 119, 123) the court said, “We are, therefore, all agreed that it cannot be said as matter of law that the parents were guilty of negligence in intrusting their children with the girl or that she was guilty of negligence in not trying to control them and keep them off the platform.” (See, also, Fallon v. Central Park, North and East Riv. R. R. Co., 64 N. Y. 13; Cosgrove v. Ogden, 49 N. Y. 255; Kunz v. City of Troy, 104 N. Y. 344.)
. A survey of the New York decisions in Ann. 51 A. L. R. 209, 223-224, indicates that only a small percentage of "the jury verdicts found that the parent was guilty of a breach of the duty of supervision as a matter of fact. For a survey of cases outside New York, see Shirack v. Gage (166 Kan. 719).
. Some of the questions raised by the court to be determined at the trial were: (1) Did alternative methods of ingress and egress to the family apartment exist? (2) Could.the stairway he considered part of the home? (3) Was using a defective stairway a proper exercise of parental discretion in providing housing?