Opinion
May 20, 1992
Appeal from the Civil Court of the City of New York, New York County, Louis York, J.
Ginsberg Broome, P.C., New York City (Robert M. Ginsberg and Michael Finkelstein of counsel), for appellant.
Barry, McTiernan Moore, New York City (William E. Fay, III, of counsel), for respondent.
Order entered May 29, 1991 reversed, with $10 costs, defendant Rivka Kronengold's motion for summary judgment dismissing the complaint as against her is denied and the complaint reinstated.
In this negligence action for personal injuries, the infant plaintiff, then 2 1/2 years old, was involved in a pedestrian accident. The infant plaintiff was struck and injured by a southbound motor vehicle while being held in his mother's arms as she attempted to cross an intersection at West 106 Street and Broadway, allegedly against a red light. The accident occurred on March 22, 1986, at approximately 10:00 A.M. while plaintiff's family was walking to a synagogue.
The infant, by his father, sues for personal injuries against his mother (defendant Rivka Kronengold) and defendant Dennis Berger, the owner and operator of the motor vehicle. The infant's father asserts a derivative claim for both medical expenses and loss of services. Following joinder of issue and the deposition of the infant plaintiffs mother, the court below granted defendant mother's motion for summary judgment dismissing the complaint as against her. Civil Court reasoned that this claim was solely one for negligent parental supervision and, thus, not actionable under Holodook v Spencer ( 36 N.Y.2d 35).
We reverse. Contrary to the holding of the court below, the facts alleged in this case are sufficient to state a cognizable claim for simple ordinary negligence arising from an intrafamily tort (see, Gelbman v Gelbman, 23 N.Y.2d 434), a claim separate and distinct from negligent supervision.
Significantly, unlike traditional negligent supervision cases, the case before us does not require judicial intervention into the subjective factors involving parental child care and supervision (cf., Zikely v Zikely, 98 A.D.2d 815, affd 62 N.Y.2d 907 [mother, who allowed unsupervised child to fall into bathtub filled with scalding water while preparing child's bath, protected from liability]).
Rather, "[t]he only judgment involved here is how to safely cross a street, not how to care for or rear a child" (Mancinelli v Crosby, 247 N.J. Super. 456, 463, 589 A.2d 664, 667 [App. Div. 1991] [parent, who negligently led seven-year-old child by the hand from curb onto street in midblock, directly into path of moving vehicle, held solely liable for negligence upon a jury verdict]).
Although the duty to safely lead a child (and oneself) across the street will usually arise in the parent-child relationship, this breach of a duty of due care is essentially one owed to "both ourselves and others in the community" (Mancinelli v Crosby, supra, at 461, at 666) and the world at large, including owners and operators of motor vehicles and other pedestrians. To the extent that Agin v Likens ( 81 Misc.2d 690) holds that this duty is dependent on the parent-child relationship, we decline to follow it.
Furthermore, shielding the infant plaintiff's mother from liability in this action would promote none of the public policy considerations underlying the Holodook (supra) parental immunity exception to the Gelbman rule (which rule abolished intrafamily immunity for nonwillful torts).
Finally, on the merits, triable issues of fact exist warranting denial of defendant mother's summary judgment motion on this sparse record (see generally, Rotz v City of New York, 143 A.D.2d 301, 304).
I respectfully dissent.
The issue is whether the parent's conduct in allegedly crossing against the red light constitutes nonactionable negligent supervision or actionable negligence because the parent breached a duty owed to the public at large. I find that the action is not maintainable because the parent's conduct constitutes negligent supervision which is not a recognized tort in New York. (Holodook v Spencer, 36 N.Y.2d 35.)
The child in Holodook (supra) was struck by a vehicle when he ran from between parked cars. The action based on negligent parental supervision was dismissed on the ground that it is not a recognized tort. Gelbman v Gelbman ( 23 N.Y.2d 434) had previously abrogated the defense of intrafamily immunity for nonwillful torts. The Holodook court stated that the decision in Gelbman did not create a new cause of action for negligent parental supervision. "There [Gelbman v Gelbman], the duty to drive carefully was owed to the world at large and derived from the parties' relation as driver and passenger; that the parties were also child and parent was a fortuitous fact, irrelevant to both the duty and to a determination of its breach. By contrast, the cases before us involve a parent's duty to protect his child from injury — a duty which not only arises from the family relation but goes to its very heart. Gelbman did not pave the way for the law's superintendence of this duty." (Holodook v Spencer, supra, 36 N.Y.2d, at 50-51.)
Crossing the street with a child in her arms "'involve[s] a parent's duty to protect [the] child from injury'" and does not breach any duty "'owed to the [public] at large'". (Agin v Likens, 81 Misc.2d 690, 691.) Factually, I find no breach of a duty owed to the public at large by the parent which is the point of departure from the majority view. (Young v Greenberg, 181 A.D.2d 492; Pravato v Pravato, 175 A.D.2d 116; see also, 2C Warren, Negligence § 80.02 [3]; Kelner and Kelner, Trial Practice: Tort Liability of Negligent Parents, NYLJ, Jan. 9, 1991, at 3, col 1.)
The judgment should be affirmed.
PARNESS, J.P., and MILLER, J., concur; McCOOE, J., dissents in a separate memorandum.