On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Brody, Ashbey and Skillman. The opinion of the court was delivered by Brody, J.A.D.
Ten-year-old Keith Murray (plaintiff), by his guardian ad litem, and his guardian ad litem individually*fn1 brought this personal injury action against plaintiff's father (defendant) and Patrick Shimalla, another young boy. The two boys and a third young boy, Chris Hague, were using gasoline to make a fire in a wooded area behind the Murray home. The boys had obtained the gasoline from an unlocked storage shed on the Murray property. Plaintiff was injured when the gasoline ignited. We granted defendant's motion for leave to appeal an order denying his motion for summary judgment. The issue is whether defendant is protected from suit by the doctrine of parental immunity.
The current state of the law in New Jersey appears in Foldi v. Jeffries, 93 N.J. 533 (1983). There the Court made it clear that the doctrine of parental immunity has been abolished except "in areas involving the exercise of parental authority or the provision of customary child care." Id. at 546. The Court carved an exception from that exception "in one discrete area of parental authority" where an injury results from "the absence or inadequacy of a parent's supervision over his or her children." Ibid. In such a case, the parent is liable but only if the lack of parental supervision is willful or wanton. Id. at 549.
In denying defendant's motion for summary judgment in the present case, the trial judge ruled, on the basis of interrogatory answers and deposition excerpts, that plaintiff's injury was not the result of the absence or inadequacy of defendant's supervision.
Inferentially, he concluded that the immunity did not apply because the accident did not involve the exercise of parental authority or the provision of customary child care. The issue to be tried as he saw it was simply whether defendant was negligent:
The motion was properly denied, but the judge ruled prematurely that parental immunity was not implicated.
The first step in applying the Foldi analysis requires the judge to determine what acts or omissions by the parent a fact finder could reasonably find were the proximate cause of the child's injury. The next step is to determine whether that conduct is protected by parental immunity, i.e., whether it involves the exercise of parental authority or the provision of customary child care. If it does, the next step is to determine whether the conduct constitutes a lack of parental supervision. If it does, the final step is to determine whether a fact finder could reasonably find that the conduct was willful or wanton thereby removing it from the immunity.
We first examine how the injury occurred in order to determine what acts or omissions by defendant might reasonably have proximately caused plaintiff's injury. Plaintiff gave the following account of the accident in an interrogatory answer:
Patrick Shimalla usually carried matches and liked to make fires. Before the incident, the three boys collected wood and grass and decided to build a fire on an over-the-road vehicle trail to the rear and to the left of the plaintiff's home slightly into the woods. Patrick Shimalla had the matches to light the fire. There was difficulty starting the fire and the infant plaintiff and Christopher Hague went to a shed on the Murray property which is to the rear of the Murray house, and got some gasoline out of a can and put it into a peanut can and brought it back to the fire they were trying to start. The boys had easy access to the shed in that it was not locked. Finally, the fire got started by dipping grass into the gasoline can and throwing the gasoline and grass onto the fire. Finally, the gas ran out, and the infant plaintiff and Christopher made a second trip to the shed to get more gasoline. Again, the same procedure was repeated. Immediately before the incident, Patrick Shimalla had the gasoline can in his hand, and the gasoline in it caught fire. Patrick then threw the can,
which was aflame, up in the air, in the direction of the infant plaintiff and the flaming gasoline then poured down and on the infant plaintiff which caused his severe burns.
Patrick Shimalla described the accident in answer to an interrogatory as follows:
Plaintiff, Keith Murray, was burned by gasoline that exploded from a can he was holding. While Keith Murray was pouring gasoline onto a piece of wood I was holding, Chris Hague touched a smoking stick to the stream of gas that Keith Murray was pouring from the can he was holding.
Chris Hague*fn2 gave the following account of the accident in his interrogatory answer:
Before the accident, Keith Murray, Patrick Shimalla and myself, Chris Hague, were together on Keith Murray's porch, eating. During that time, I was playing with a lighter. Keith Murray then stated he wanted to make a fire. All three of us began collecting wood and leaves in which to build the fire. The pile of woods and leaves was set on fire when someone threw a match on it. I am not sure who threw the match on the pile. We all continued to place wood and leaves on the fire. Keith Murray then stated we should get some gasoline from his shed. Keith Murray and I went to the shed three (3) times and each time everyone took turns putting some gasoline on the fire. But the third time, the can of gasoline was not returned to the shed, instead it remained within inches from ...