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Cwik v. Zylstra

Decided: November 5, 1959.

HENRY J. CWIK, SR., GUARDIAN AD LITEM, ETC., PLAINTIFF-APPELLANT,
v.
LOUIS ZYLSTRA AND TESSIE ZYLSTRA, DEFENDANTS-RESPONDENTS



Goldmann, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.

Freund

Defendants, Louis Zylstra and his wife Tessie, were sued for negligence in allowing their grandson, Henry Cwik, Jr., (hereinafter "Jody") to fall into a pail of scalding water while the boy was in their care. The plaintiff is Jody's father and defendants' son-in-law, and he seeks to recover damages as parent per quod and as guardian ad litem of his son. This appeal is from the action of the Hunterdon County Court in granting a dismissal as to both defendants, upon motion made at the close of plaintiff's case. The action was brought upon the theory we accepted in Barbarisi v. Caruso , 47 N.J. Super. 125 (App. Div. 1957) -- that a grandparent who has voluntarily undertaken to care for and supervise a child must exercise reasonable care in so doing.

So that they would be free to attend a high school reunion on Saturday night, June 22, 1957, Mr. and Mrs. Henry J. Cwik, Sr., entrusted their two boys, 4 1/2 year-old Frankie and 2 1/2 year-old Jody, to the maternal grandparents at the latters' dairy farm in the Township of Readington. The boys stayed at the farm over night. The Cwiks, who resided in High Bridge, had been thus accommodated by defendants on prior occasions. The grandparents were in control of the farm as lessees of the premises.

Defendants' answers to interrogatories, read into the record as part of plaintiff's affirmative case, state that cows were milked by them in the barn between 4:30 and 7:00 A.M. on Sunday morning, June 23. Jody was still asleep at this time. At about 9:00, however, Mrs. Zylstra was in the barn cleaning the milking machines and the milk pails.

She would first run cold water through the machines and then hot water. Mr. Zylstra was in the house having breakfast at the time. Mrs. Zylstra had drawn about seven quarts of scalding water from an electric water heater into a bucket. The bucket was 16" high and 12" in diameter and had a 12-quart capacity. She placed the bucket inside the doorway of the barn, to the side. Jody was now out of bed and dressed in a sunsuit.

A description of how the mishap occurred must come from defendants, as Jody and his brother were too young to testify and their parents were not present at the time. The parents, however, testified to admissions and explanations given them by the grandmother when she was pressed for the details.

The father testified he had a conversation with his mother-in-law at the farm while Jody was still in the hospital. The following is his testimony:

"Q. Did she say where -- Did you ask her anything about where the pail was when Jody fell in? A. Yes, I did.

Q. And what did she say to you? A. In the doorway.

Q. In the doorway of what? A. Of the barn. She also said the kids had no business being there but she left them there, she knew they were there but she didn't think that that could happen.

Q. Did you ask her anything about or did she say anything about what the children were doing around the entrance ...


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