On appeal from Superior Court, Law Division, Morris County.
Botter, Antell and Furman. The opinion of the court was delivered by Antell, J.A.D. Furman, J.A.D. (dissenting).
In this personal injury action infant-plaintiff appeals from an order for summary judgment entered in favor of her parents, defendants Michael and Bernadine Foldi. Plaintiff was 2 1/2 years old at the time of the accident. Her theory of recovery is grounded in defendants' claimed failure to exercise reasonable care in supervising her behavior and to instruct her in personal care and safety. The order below rests on the doctrine of parental immunity.
While defendant Bernadine Foldi was working in her garden plaintiff wandered off to neighbors' property where she was bitten by their dog. Although the mother had been keeping her eye on plaintiff the injury was sustained during a five or ten minute interval when the child slipped away and her absence went unnoticed. When she was later found by defendant she was crying and bleeding on another neighbor's driveway. This action was initiated against the owners of the dog, defendants Jeffries, who denied liability and filed a third-party complaint against Michael and Bernadine Foldi for indemnification. Plaintiff then amended her complaint to join her parents as defendants. We are advised that plaintiff's claim against defendants Jeffries has been settled.
Although the Supreme Court recognized in France v. A.P.A. Transport Corp. , 56 N.J. 500 (1970), that the parent-child immunity doctrine "should be abrogated in this State," it acknowledged "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." Noting that its decision went no further than to allow suits between unemancipated children and their parents for injuries suffered as the result of the negligent operation of a motor vehicle, the court left it to future cases to decide "what limits, if any, the rule enunciated here should have." 56 N.J. at 507.
Small v. Rockfeld , 66 N.J. 231 (1974), removed all doubt that the rule abrogating immunity was not limited to motor vehicle negligence and applied it in that case to allow an action against the infant-plaintiff's father for feloniously causing the death of his wife, the infant's mother. However, the court again observed that immunity could still be operative in "special areas in the parent-child relationship, such as customary care and discipline," and specifically commented that immunity had been terminated only in cases not involving the exercise of "parental authority and adequacy of child care." 66 N.J. at 244. It also noted with apparent approval the following exceptional situations identified in Goller v. White , 20 Wis. 2d 402, 122 N.W. 2d 193 (Sup.Ct. 1963), in which immunity might still prevail:
(1) Where the alleged negligent act involves an exercise of parental authority over the child; and (2) Where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. [66 N.J. at 243, emphasis ours].
The residual limits of the immunity doctrine have since been considered in four other New Jersey cases. In Dower v. Goldstein , 143 N.J. Super. 418 (App.Div. 1976), the doctrine was held not applicable to bar a suit by an infant-plaintiff against his parents for injuries caused by the parents' dog. In Gross v. Sears, Roebuck & Co. , 158 N.J. Super. 442 (App.Div. 1978), a suit was allowed against defendant-father for negligently injuring the infant-plaintiff in the operation of a lawnmower.
Fritz v. Anderson , 148 N.J. Super. 68 (Law Div. 1977), and Convery v. Maczka , 163 N.J. Super. 411 (Law Div. 1978), addressed circumstances materially analogous to those here presented. In Fritz the infant-plaintiff sued for injuries caused by a fall into an excavation on a neighbor's property. The
action was grounded in alleged failure by defendant parents to supervise and instruct as to principles of safety. These breaches of care were held to involve the exercise of parental authority and discretion, and therefore, under the doctrine of parent-child immunity, not redressable. Arriving at a different result, the Convery court held that immunity was not applicable for failure to supervise where the child fractured a bone by jumping from a chair. It was there reasoned by our dissenting colleague that the injury was "actionable within the limits of reasonable foreseeability against others with a special relationship to the child." 163 N.J. Super. at 416. Although he held that the right of recovery did not "arise exclusively out of the parent-child relationship," the only relationship, "special" or otherwise, we discern between the injured plaintiff and defendant from which a duty ...