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La Torre v. Genesee Mgmt. Inc., 90 N.Y.2d 576 (Oct. 21, 1997).

PARENT AND CHILD -- TORT LIABILITY -- INDEMNIFICATION -- CONTRIBUTION -- THIRD-PARTY COMPLAINTS

NO ACTION FOR NEGLIGENT SUPERVISION AGAINST A PARENT WITHOUT SUFFICIENTLY STATING THE CONNECTIONS BETWEEN A CHILD'S DISABILITY AND THE PARENT'S KNOWLEDGE OF THE CHILD'S VIOLENT PROPENSITIES.

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

A developmentally disabled young person was left unattended by his mother in a mall. After an altercation with a mall patron, he was injured by security personnel. The young person sued the mall for injuries, and the mall brought a third-party complaint against the mother for indemnification. The mother did not answer. The mall moved for summary judgment against the mother. The trial court denied summary judgment and dismissed the third-party complaint. The Appellate Division affirmed. The mall appeals.

ISSUE & DISPOSITION

Issue

Whether a third-party action for negligent supervision against the parent of a developmentally disabled young person may be plead generally.

Disposition

No. Negligence must be pleaded with reasonable specificity with respect to the knowledge and forseeability of the child's violent propensities.

AUTHORITIES CITED

Cases Cited by the Court

  • Nolechek v. Gesuale, 46 N.Y.2d 332 (N.Y. 1978).
  • Holodook v. Spencer, 36 N.Y.2d 35 (N.Y. 1974).
  • Brahm v. Hatch, 609 N.Y.S.2d 956 (App. Div. 1994).
  • Adolph E. by Susan E. v. Linda M., 566 N.Y.S.2d 165 (App. Div. 1991).
  • Massapequa Free School Dist. No. 23 v. Regan, 405 N.Y.S.2d 308 (App. Div. 1978).

Other Sources Cited by the Court

RELATED SOURCES

  • Anderson v. Stream, 295 N.W.2d 595 (Minn. 1980).
  • Merenoff v. Merenoff, 388 A.2d 951 (N.J. 1978).
  • Silisky v. Kelman, 161 N.W.2d 631 (Minn. 1968).
  • Goller v. White, 122 N.W.2d 193 (Wis. 1963).
  • Carey v. Davison, 437 A.2d 338 (N.J. Super. Ct. Law Div. 1981).

COMMENTARY

State of the Law Before La Torre

A third party generally may not maintain a tort action against a parent for negligent supervision of a child. Holodook v. Spencer, 36 N.Y.2d 35, 51 (N.Y. 1974). The Holodook court based its decision on N.Y. General Obligations Law § 3-111 (McKinney 1989), which does not allow a defense of contributory negligence based on inadequate supervision in tort suits brought by children. The general policy behind this statute and the Holodook extension is to prevent retaliatory suits between estranged family members (i.e. an uncle sues his nephew's parents for the child's actions). Allowing third party complaints for negligent supervision is contrary to that policy because it would impute the parents' negligent supervision to the child.

The court in Nolechek v. Gesuale, 46 N.Y.2d 332, 338 (N.Y. 1978), found a "dangerous instrument" exception to this rule. Parents are not absolved of liability from harm incurred by third parties when parents unreasonably permit their child to use "dangerous instruments." This rule applies especially where the parent is "aware of and capable of controlling its use." Id. at 339.

The other recognized exception to the general rule comes from Brahm v. Hatch, 203 A.D.2d 640 (N.Y. 1994). The court in Brahm held that "liability may arise when the parent . . . fails to supervise a child with a known propensity toward vicious conduct." Id. at 641. For the claim to go forward, it must be established both that "the child had a tendency to engage in vicious conduct which might endanger a third party and that the child's parents had knowledge of his or her propensities in this regard." Id.

Effect of La Torre on Current Law

La Torre clarifies the exceptions to the doctrine of parental immunity from liability for negligent supervision of their child. La Torre at para. 5. The court explains that specificity is required in alleging the knowledge and foreseeability of the child's violent propensities. La Torre at para. 21. General allegations based on the mental capacity of a young person are insufficient to state a cause of action. Id.

Unanswered Questions

In order for a third-party claim of this kind to succeed, the party must plead with "reasonable specificity." However, the court does not define "reasonable specificity" so it is unclear how specific a pleading must be to withstand the force of Holodook. The court also lists several factors courts should consider, such as "extraordinariness" and "patent foreseeability." These factors are not defined by the court's opinion, thus leaving room for future litigation.

Survey of the Law in Other Jurisdictions

Many states have a parental immunity rule. Some of those states have clear, unambiguous case law explaining the rule. In Wisconsin, for example, the Supreme Court found that the parental immunity rule in negligence cases should be abrogated except when: (1) the alleged negligent act involves an exercise of parental authority over the child; or (2) the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical, and other care. Goller v. White, 122 N.W.2d 193 (Wis. 1963) (foster son's action against foster father for injuries while riding on a tractor operated by foster father). The Wisconsin rule was the rule in Minnesota under Silesky v. Kelman, 161 N.W.2d 631 (Minn. 1968), until 1980 when the Supreme Court of Minnesota changed the rule to a "reasonable care" standard. Today the jury is to decide what an ordinarily reasonable and prudent parent would have done in similar circumstances, taking into account the parent-child relationship. Anderson v. Stream, 295 N.W.2d 595, 599 (Minn. 1980) (parent brought action against neighbors for damages which resulted from child's injuries when one neighbor drove over child's leg while she played on the common driveway).

In New Jersey, a court found that a third party could maintain an action for negligent supervision of a child by a parent only where the parent failed to curb a child with known dangerous propensities, or failed to supervise a child using or having access to a dangerous instrumentality. Carey v. Davison, 437 A.2d 338, 343 (N.J. Super. Ct. Law Div. 1981) (motorist hit child in crosswalk and then filed third party complaint against child's father for negligent supervision; case did not come within either of the two grounds for this tort) (citing Merenoff v. Merenoff, 388 A.2d 951 (N.J. 1978) (abolished inter-spousal tort immunity, allowing personal injury actions between married persons)).

Prepared By:

  • Regina Cheung, '99
  • Kevin D. DeBorde, '99
  • Jeff L. Hogue, '99
  • Denise A. Johnson, '98
  • Daniel J. O'Rielly, '98
  • Joymarie Torres, '98
  • Kelly H. Tsai, '99