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Carey v. Davison

Decided: October 13, 1981.


Newman, J.s.c.


This a personal injury action which was instituted on behalf of the infant plaintiff after she was struck by an automobile operated by defendant while crossing the street. Defendant subsequently filed a counterclaim for contribution and/or indemnification against plaintiff George Carey, the infant's father. The counterclaim alleged improper supervision, control and/or management of the actions of the infant plaintiff. The matter before the court is plaintiffs' motion to dismiss the counterclaim for failure to state a claim upon which relief can be granted.

The following facts have been conceded for purpose of this motion. Plaintiff Nayette Carey, an infant, was standing at the curb of a street, holding her father's hand, waiting to cross.

Her father, also named as plaintiff, released her hand after observing traffic in the roadway, and told her to cross the street. Nayette did so, and was struck by a vehicle driven by defendant Raymond Davison, sustaining severe personal injuries. According to plaintiff's certification filed in support of this motion, plaintiff's father has no insurance which would afford coverage for a claim made against him based upon negligent supervision of his child.

At issue is whether the parent-child immunity doctrine as it currently exists in the law of New Jersey bars the counterclaim against the infant plaintiff's father. A review of recent New Jersey law reveals that there has been an inexorable erosion of parent-child immunity in a number of decisions which abrogated the immunity in the narrow circumstances presented in each case. A review of the significant cases would be in order.

In France v. A.P.A. Transport Corp. , 56 N.J. 500 (1970), the Supreme Court, in a 4-3 decision, established that the doctrine would no longer be viable in cases involving automobile negligence. The holding was limited to exactly those facts, the court noting that "We realize that there may be areas involving the exercise of parental authority and care over a child which should not be justiciable in a court of law." (At 507).

Small v. Rockfeld , 66 N.J. 231 (1974) a 4-2 decision, eliminated immunity in situations involving willful, malicious and intentional torts. In the case of Dower v. Goldstein , 143 N.J. Super. 418 (App.Div.1976), the Appellate Division was presented with a situation in which a child was bitten by his parents' dog. The court held that the immunity would no longer apply in cases where liability was mandated by statute.

France v. A.P.A. Transport Corp., supra , remains the sole case in which the New Jersey Supreme Court has dealt with the doctrine in the context of parental negligence. Reported decisions of the lower courts since 1970 are Fritz v. Anderson , 148 N.J. Super. 68 (Law Div.1977); Gross v. Sears Roebuck & Co. , 158 N.J. Super. 442 (App.Div.1978), and Convery v. Maczka , 163 N.J. Super. 411 (Law Div.1978).

In Fritz v. Anderson, supra , the Law Division refused to allow a defendant to join parents in a suit by a minor child who was injured when he fell into an excavation site. Joinder was not allowed because at that time France v. A.P.A. Transport Corp., supra , was the law in New Jersey regarding actions for negligence between parent and child, and the immunity doctrine had only been abrogated in situations where the parent had negligently operated an automobile. The court observed: "The viability of defendant's counterclaim depends upon the ability of the court to extend the abrogation of the parent-child immunity doctrine, beyond the limits established by the Supreme Court in France. . ." Id. at 70.

Subsequent to Fritz the Appellate Division decided Gross v. Sears Roebuck & Co., supra. Gross was a case in which a direct action between a child and his parent was allowed where the father was operating a power lawn mower and the child was injured. Judge Halpern noted that no New Jersey court had applied the exceptions to the abrogation of parent-child immunity recognized by France v. A.P.A. Transport Corp. to the facts of a specific case, and concluded:

We have considered the issue and have concluded that exceptions to the rule should be strictly limited to instances where it clearly appears that the alleged negligent act involves the exercise of parental authority over the child, or where the alleged negligent parental act relates to "the provision of food, clothing, ...

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