Lastowski v. Norge Coin-O-Matic, Inc.

Gulotta, P. J. (dissenting).

I concur in Justice Hopkins’ view that the order denying the motion by the plaintiff parents to dismiss the counterclaim on the pleadings as insufficient in *144law was properly denied, but in scale respects my reasons are different.

First, I believe we need not decide at this time whether the rule of Gelbman v. Gelbman (23 N Y 2d 434) will be extended to situations where there is no compulsory insurance coverage, because this case does not involve. a direct suit by a child against his parent, and therefore we need not reach that point.

It may very well be that when the occasion arises Gelbman will be interpreted to have gone that far, but we cannot ignore the fact that the opinion- in that case relies on the presence of insurance coverage to dispose of the argument that intrafamily suits for simple negligence will be disruptive of family harmony. However, in adopting the reasoning of Judge Fuld’s dissent in Badigian v. Badigian (9 N Y 2d 472) the unanimous Gelbman court went far beyond that simple argument by pointing out the many situations which were already exempt from the doctrine, e.g., suits involving contracts, wills and inheritances, suits for willful torts, suits for property damage, suits after the minor reaches majority and other situations where there is no insurance, thus indicating that the court was out of sympathy with the old rule for reasons other than that the real defendant in Gelbman was the insurance carrier.

It is not amiss to point out that in nonaütomobile cases there will often be a homeowner’s .policy which.will trigger the lawsuit and protect the parent whether it be a direct suit or a Dole v. Dow Chem. Co. (30 N Y 2d 143) type of blame sharing.

Furthermore, even before the advent of Dole, in several analogous situations the distinction between direct intrafamily suits and claims-over for indemnity has long been a part of our law. For example, while suits for negligence between spouses were still prohibited, suits by a wife against her husband’s employer for her husband’s negligence were entertained, although a claim-over for indemnity against the husband could result. At common law a wife could not sue her husband. in negligence, but in Schubert v. Schubert Wagon Co. (249 N. Y. 253 [1928]) she was allowed a recovery against her husband’s employer for the husband’s negligent operation of an automobile. Chief Judge Caudozo noted that the master’s remedy over against the servant did not alter the result. The purpose of the 1937 amendment to section 57 of the Domestic Relations Law (now General Obligations Law, § 3-313), giving a right of action for tortious acts between spouses (L. 1937, ch. 669, § 1) and the 1941 amendment to subdivision 3 of section 167 of the Insurance Law, excluding insurance coverage in such a case *145unless specifically included in an insurance policy (L. 1941, ch. 627, § 1), was to change the common law barring such actions but at the same time protect the insurer against collusive suits (Jacobs v. United States Fid. & Guar. Co., 2 Misc 2d 428; New Amsterdam Cas. Co. v. Stecker, 1 AD 2d 629). Nevertheless, in Jacobs (supra) a wife recovered on a policy insuring a partnership of which her husband, who was driving the automobile in question, was a member. She had sued only the other partner to avoid the restrictions of the insurance policy.

The same anomaly exists in a suit by a child against a corporate employer of his father for the father’s negligence, which was permitted even before Gelbman (supra). Although the common insurance coverage in such cases makes such a claim-over unlikely, the existence of the right illustrates the point (see Chase v. New Haven Waste Material Corp., 1111 Conn. 377; Briggs v. City of Philadelphia, 112 Pa. Super. Ct. 50; Winnick v. Kupperman Constr. Co., 29 A D 2d 261; Sullivan v. Christiensen, 191 N. Y. S. 2d 625). Kemp v. Rockland Leasing (51 Misc 2d 1073) sustained a suit by an infant passenger against the owner of an automobile operated by his mother with the owner’s consent. This was maintained under section 388 of the Vehicle and Traffic Law, which is similar to respondeat superior but not identical.

In suits by employees against third-party wrongdoers, claims-over against the employers have been allowed, although the Workmen’s Compensation Law bars a direct claim by an employee against his employer where the employer has procured compensation insurance coverage (Workmen’s Compensation Law, § 29). See Westchester Light. Co. v. Westchester County Small Estates Corp. (278 N. Y. 175), where a complaint by a third-party tort-feasor against the employer of one who was killed in the course of his employment was sustained, the court stating in this connection (p. 180) : “It may be admitted that if the defendant is held to answer to the plaintiff in this action the result (as the Chief Judge says) is that an employer is made liable indirectly in an amount which could not be recovered directly. This consequence, we think, does not decide the issue against the plaintiff. Recovery over against the employer in an unusual case like this need not be rested upon any theory of subrogation. An independent duty or obligation owed by the employer to the third party is a sufficient basis for the action. (Schubert v. Schubert Wagon Co.., 249 N. Y. 253.) ” To the same effect, see Wright v. Lichtman (36 Misc 2d 1096, 1097), which also involved a third-party complaint against an employer, *146the court stating: “ In the case at bar the defendant is charged with negligence in failing and omitting to take the necessary precautions to avoid this accident. ’ It is possible, under the allegations of the complaint, that the defendant will be held liable for some act or omission constituting passive negligence in connection with the repair of his vehicle by the third-party defendant. If he is held liable for such passive negligence, then a claim for indemnification would be proper. Of course, if it is proved upon the trial that he was not negligent at all or that his sole negligence was active, then the claim must fail.” (Cf. Edwards v. Sophkirsh Holding Corp., 280 App. Div. 168, affd. 304 N. Y. 850.) The scope of such claims will be greatly amplified by the application of Dole (supra), eliminating as it does the need to differentiate between active and passive negligence to sustain such a claim.

So I think it important to recognize at the outset that the circuitous suit is not identical with a direct claim and that the one can and has existed, without the right to maintain the other.

We recognized the distinction in State Farm Mut. Auto. Ins. Co. v. Westlake (43 A D 2d 314) where a husband’s insurance company was required to defend a Dole counterclaim by the defendant against the husband in a suit by the wife who had been a passenger in the husband’s automobile, although subdivision 3 of section 167 of the Insurance Law clearly bars such coverage in a suit directly between the spouses. Thus we necessarily recognized that the cases are not the same. This followed our decision in Moreno v. Galdorisi (39 A D 2d 450) where we permitted a Dole-type claim-over to be made against a husband who was driving the automobile in which his wife was a passenger and which had been involved in a collision with the defendant.

Passing to the next point, since we are dealing only with the sufficiency of a pleading, it is important to keep in mind that in general CPLR 3013, reading as follows: “ Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense ”, has done away with any need to supply the details which constitute a defendant’s alleged negligence in order to survive a motion to dismiss. (See Practice Commentaries to that section by Professor David D. Siegel [McKinney’s Cons. Laws of N. Y., Book 7B, p. 609 et seq.].)

*147Dean Joseph M. McLaughlin of Fordham Law School, in analyzing Hairston v. Broadwater (73 Misc 2d 523), which held a counterclaim by a tort-feasor against a parent insufficient, observed (in the New York Law Journal, May 11,1973, pp. 1-2): “ The last conclusion is troublesome. Even if, as the court held, ‘ requisite factors of hazard, and neglect must offer themselves before a parent can be deemed to have so offended standards of care and responsibility to have breached a legal duty to a child * * * , ’ the court seems to arrive at this conclusion prematurely. To survive a dismissal motion, a complaint (or a counterclaim) need only state a cause of action. It need not prove one.

“ Official Form 12 of the Judicial Conference’s Appendix of Judicial Forms is a complaint for negligence in automobile accident cases. Paragraph 3 is the heart of the complaint; and it alleges simply that ‘ solely as a result of defendant C.D.’s negligence, plaintiff was personally injured . . . ’ If this Olympian generality is sufficient to state a cause of action for negligence in a complaint, why is a higher standard expected of a counterclaim?

In short, it is suggested that defendants should be permitted to counterclaim against the parent of an infant plaintiff and that, at least in the pleadi/ng stage, it should be sufficient for the defendant to charge the parent with blanket negligence. If, after pre-trial disclosure, it appears that the facts do not support a cause of action against the parent, a motion may be made to dismiss the cou/nterclaim for failure to state a cause of action or the parent may move for summary judgment. To reiterate', it seems unfair to dismiss these counterclaims at the threshold before the defendant has had an opportunity to develop the facts ” (emphasis supplied).

It seems to me that even if we are to adopt some special tests in determining when a parent has been negligent vis-á-vis his child, the pertinent application should be made to the proof adduced at a trial or even on a motion for summary judgment, but not at the pleading stage.

This brings me to what I regard as the central issue in this case and that is whether there already exists or whether we should adopt a blanket rule declaring that no cause of action will lie against a parent in negligence for acts of omission toward his children, that is, for lack of supervision.

I have found no authority and thé majority opinion cites none to support the view that the early common law drew a distinction between negligent acts of commission and negligent acts of omission in this respect.

*148It may be true, as Chief Judge Desmond remarked in the majority opinion in Badigian v. Badigicm (9 N Y 2d 472, supra), that there is no decision in an American or English appellate court sustaining a cause of action for lack of supervision by a parent, but it seems to be equally true that there is no decision denying such right. In view of the immunity doctrine which became firmly entrenched in New York law when the question first came up in a case involving active negligence (Sorrentino v. Sorrentino, 248 N. Y. 626), one would hardly expect the question to come up with respect to the lesser wrong of passive negligence. Therefore, we would not be justified in concluding, from this absence of case law, that the right did not exist. It is noted in Ann. 19 ALR 2d 423, 430-431: “ No better light on the whole problem will be found than that of the full discussion by Chief Justice Peaslee in Dunlap, v. Dunlap [fn. (1930) 84 N H 352, 150 A 905.]. That learned judge declared without qualification that1 there never has been a common law rule that a child could not sue its parent.’ Concurrence in that conclusion is found elsewhere, including the works of English writers. Yet the American cases often contain the statement that * at common law ’ the action was denied.”

In another context the Court of Appeals has indeed recognized that lack of supervision by a parent can amount to negligence. That was at a time when the negligence of a parent was imputed to a child and it then could be utilized by a defendant to defeat a recovery by the infant on the ground of contributory negligence (see Weil v. Dry Dock, East Broadway & Battery R. R. Co., 119 N. Y. 147; Mangam v. Brooklyn R. R. Co. (38 N. Y. 455). In Weil, where the court had nonsuited the infant plaintiff because of the alleged negligence of the parent in supervising the infant, the court said (p. 153): The plaintiff’s parents were bound to protect her from danger so far as that could be done by the exercise of reasonable prudence and care. The law did not require the father to suspend his business and keep the child every moment under his eye. He was required only to exercise such a degree of care as was reasonable in his situation and under all the circumstances of the case. "Whether in this case the father did, in fact, all that a reasonably careful and prudent man ought to have done under the circumstances, was a question for the jury and not for the court. (Birkett v. K. I. Co., 110 N. Y. 506; Kunz v. City of Troy, 104 N. Y. 344; Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 464.) ”

The fact that the contributory negligence of a parent is no longer imputed to an infant does not detract from the relevancy of these cases to the present discussion-

*149Judge Fuld in Badigian (supra) pointed out (citing Prosser, Law of Torts [2d ed., 1955], p. 675) that the family immunity doctrine was without precedent in English common law; It was first announced in this country in 1891 in a Mississippi case (Hewlett v. George, 68 Miss. 703). That case involved a willful tort since it was a suit by a minor daughter against her mother for maliciously confining her in an insane asylum. The doctrine spread to negligent torts in other States, but it was not until 1928 that it was applied in New York to a negligence case involving the operation of an automobile in a 4 to 3 decision, without opinion, which affirmed a Second Department decision, which was also without opinion (Sorrentino v. Sorrentino, 248 N. Y. 626, affg. 222 App. Div. 835, supra). It has never been applied in New York to willful torts.

The opinion in Cannon v. Cannon (287 N. Y. 425 [1942]) reaffirmed the doctrine as limited to a negligent tort, using language which could be interpreted to mean that the cause of action did not exist, rather than that it did but was barred for public policy reasons. However, in Gelbman {supra) Judge Burke noted very explicitly that this was not the case, stating that immunity was a court-made rule which could be abandoned by the court and that abolishing the defense of intrafamily tort immunity for nonwillful torts did not create a new liability where none had existed, but rather recognized that it had existed all along, although recovery had been barred.

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. It is aptly summed up in Badigian in the following excerpt (p. 480): “ 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 ancient times, ‘ the Family, in fact, was a Corporation; and [the pater familias] was its representative or, we might almost say, its Public officer.’ (Maine, Ancient Law [1st Arner. ed., 1864], p. 178.) Something of the same concept is present today. In the ordering of the home, *150the father is still the judge, or, better perhaps, the king, not liable for error while he acts in good faith, without malice or indifference. ’ ’

However, it seems to me that Holodook v. Spencer (43 A D 2d 129) and Graney v. Graney (43 A D 2d 207) go too far in constructing a new rule of parental immunity covering all negligence supervision cases. They are both Third Department cases; they both involved four-year-old children who were non sui juris, but in the former a counterclaim was asserted against the parent by the defendant and in the latter a direct claim against the parent was made by the child.

Those cases suggest that the proper rule to be applied is that a parent would only be liable when he would be liable under like circumstances to a stranger. Frankly, I do not understand . how such a rule could be applied to a lack of supervision case, unless it is just another way of saying we would not allow the lawsuit at all. A parent has no duty to supervise- strange children per se, but if he or she undertakes to do so, they should indeed be liable for negligent supervision, in my opinion. On the other hand, supervision is a duty imposed on a parent without any special undertaking.

I agree that a large measure of discretion must be accorded to a parent in dealing with the care and custody of his or her children, but I do not think that a blanket exemption should be made for all nonsupervision cases, regardless of the circumstances, as the Third and Fourth Departments have done. For instance, if a parent were to allow a four-year-old nonswimming child to play unsupervised on an unfenced dock bordered by water 20-feet deep, I would want to hear the proof before dismissing the case, albeit the gravamen of the charge is lack of supervision. The same could be said if a child of tender years were left to play near a high voltage substation with the gate open or a hole in the fence. Many other illustrations could be given.

■ The rule of Goller v. White (20 Wisc. 2d 402) may present a workable compromise between the need to preserve some freedom of action on the part of a parent and the need to protect the child. It abrogates parental immunity, but excepts acts involving the exercise of parental authority and the exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services and other care. Admittedly the application of such a rule presents difficulties of its own. For instance, is lack of supervision encompassed in the phrase “ other care ”? Refinements would no *151doubt develop with the application of the rule to varying fact situations over the years, but I think the aim should be to protect a parent from mere errors of judgment which hindsight discloses to have been wrong or unwise, while not losing sight of the need to protect a child from a grossly careless parent.

I am of the opinion that we should hear the proof in this case where the charge is nonsupervision of a four-year-old child allowed to go out on the public highway where he was struck by the defendant’s truck.

Therefore, I would affirm the order under review.

Mabtuscello and Latham, JJ., concur with Shapiro, J.; Gulotta, P. J., and Hopkins, J., dissent and vote to affirm with separate opinions.

Order reversed, on the law, with $20 costs and disbursements, and motion granted.