PARENT AND CHILD -- TORT LIABILITY -- INDEMNIFICATION -- CONTRIBUTION --
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.
] | [ISSUE & DISPOSITION
| [AUTHORITIES CITED
] | [COMMENTARY
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
Whether a third-party action for negligent supervision against the parent
of a developmentally disabled young person may be plead generally.
No. Negligence must be pleaded with reasonable specificity with respect
to the knowledge and forseeability of the child's violent propensities.
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.
Other Sources Cited by the Court
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).
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
clarifies the exceptions to the doctrine of parental immunity
from liability for negligent supervision of their child. La
at para. 5. The court explains that specificity is required in
alleging the knowledge and foreseeability of the child's violent propensities.
at para. 21. General allegations based on the mental capacity
of a young person are insufficient to state a cause of action. Id
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
, 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
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)).
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