On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
King, R.s. Cohen and Stern. The opinion of the court was delivered by King, P.J.A.D.
This is an appeal following a jury's determination that the mother of an injured child was solely liable for her child's injuries. The issue on appeal is whether the judge erred in refusing to find the defense of parental immunity a bar to the claim by the child against her mother.
On May 11, 1986 Paul and Susan Chiapetta drove with their two children, plaintiff Jacqueline Mancinelli and Megan Chiapetta, to a family boardwalk outing in Point Pleasant Beach. The Chiapettas parked their car in a municipal lot adjacent to Ocean Avenue. The boardwalk and amusement rides were located across the street from the parking lot on Ocean Avenue. The Chiapettas left their car and walked to the curb of Ocean Avenue. Despite the presence of controlled intersections with marked pedestrian crosswalks to their north and south along Ocean Avenue, the Chiapettas decided to cross in the middle of the block.
Automobile and pedestrian traffic flow on Ocean Avenue was heavy on this bright, warm Sunday, (Mother's Day), at 4:30 p.m.. Susan Chiapetta led seven-year-old Jacqueline by the hand and Paul Chiapetta followed with ten-month old Megan in a stroller. Susan Chiapetta stepped off the curb onto Ocean Avenue with Jacqueline in tow. Almost immediately, a car owned by defendant Display Die Service (Display) and driven by defendant Edward Crosby struck and injured both Susan and Jacqueline. Several eyewitnesses said that Susan Chiapetta "darted" or "rushed" out into the street.
Plaintiff Jacqueline Mancinelli, by her then-guardian ad litem Susan Chiapetta, Susan Chiapetta individually, and Paul Chiapetta, filed suit against Edward Crosby and Display for Jacqueline's personal injuries. Defendants Crosby and Display answered and counterclaimed against Susan and Paul Chiapetta alleging her negligence as a cause of the accident and seeking contribution under the Joint Tort Feasors Contribution Law, N.J.S.A. 2A:53A-1 to -5. Jacqueline, by her newly-appointed
guardian ad litem Barbara McGuire and McGuire individually, then filed an amended complaint adding her mother, Susan Chiapetta, as a defendant.
Prior to trial, counsel for defendants Crosby, Display and Susan Chiapetta and their carriers agreed to stipulate the damages for Jacqueline's personal injury case at $75,000. Responsibility for and apportionment of the liability among the defendants would abide (1) a jury trial on the issue of liability and (2) resolution of Susan Chiapetta's legal defense of parental immunity as a bar to the claim by her child. The jury returned a verdict finding Susan Chiapetta 100% negligent and exonerating Crosby. The judge then denied Susan Chiapetta's motion for judgment notwithstanding the verdict based on the bar of parental immunity and entered judgment of liability in favor of plaintiff Jacqueline Mancinelli solely against her mother.
Defendant Susan Chiapetta appeals the judge's rejection of the defense of parental immunity as a bar to the claim. Defendants Crosby and Display cross-appeal from the judge's supplementary finding that Susan Chiapetta's conduct was not willful and wanton, thus precluding any legal bar of parental immunity, and his refusal to submit that issue to the jury. We affirm.
Public policy reasons exist for retention of the doctrine of parental immunity for matters arising out of the exercise of parental authority or the provision of customary child care. Foldi v. Jeffries, 93 N.J. 533, 546, 461 A.2d 1145 (1983) (failure to carefully supervise two and one-half-year old playing in yard not actionable). "There are certain areas of activities within the family sphere involving parental discipline, care, and control that should and must remain free from judicial intrusion. Parents should be free to determine how the physical, moral, emotional, and intellectual growth of their children can best be promoted." Foldi, 93 N.J. at 545, 461 A.2d 1145. Willful or wanton supervisory misconduct however is not protected by immunity. Foldi, 93 N.J. at 548, 461 A.2d 1145.
Although the Supreme Court retained the doctrine of parental immunity in areas involving the exercise of parental authority or the provision of customary child care, it specifically deferred to the lower courts for further refinements of the doctrine "on a case-by-case basis." Foldi, 93 N.J. at 546, 461 A.2d 1145. We had an opportunity to apply the doctrine recently in Murray by Olsen v. Shimalla, 231 N.J. Super. 103, 555 A.2d 24 (App.Div.1989). There a ten-year-old brought an action against his father for personal injuries sustained when the minor was pouring gasoline which he had taken from his father's unlocked ...