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Kane v. Hatch

November 19, 2008


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6294-05.

Per curiam.


Submitted October 22, 2008

Before Judges Parrillo and Messano.

In this negligent parental supervision case, plaintiffs Sharon Kane, individually and as guardian ad litem for minor plaintiff Caitlin Clarke, appeal from a final judgment in favor of defendant Sandra Hatch (defendant) following a jury verdict of no cause of action, finding defendant's conduct was neither willful nor wanton. At issue is the propriety of the trial judge's ruling that the parental immunity doctrine applied, reversing an earlier ruling to the contrary by another judge. We affirm.

This matter arises from a September 29, 2003 incident wherein five-year old Caitlin was injured after being accidentally struck with a wooden baseball bat by her five-year old playmate, neighbor Eddie Hatch, during a game of tee ball in Eddie's backyard, while Eddie's mother, Sandra, watched from her screened-in porch only seven feet away. Earlier that day, Caitlin, Eddie and another five-year old friend, MacKenzie, were playing together in Eddie's backyard tree house and swing set when they decided to play tee ball. Both Caitlin and Eddie had played organized tee ball the previous Spring season.*fn1

Just prior to play, defendant told the children to be careful and to stand back when the other was swinging the wooden bat. She went back inside from where, otherwise unengaged, she watched the children, approximately five to seven feet away, from an enclosed porch that was connected to the house, but which jutted out into the backyard. She could see the children through glass sliding doors and also hear them because the porch had eight windows, all of which had screens and were open at the time.

Caitlin and Mackenzie began taking turns hitting the tee ball off the tee, using the wooden bat, while Eddie waited in the distance to field the balls that were hit off the tee into the yard. Because Caitlin and Mackenzie were struggling to hit the ball off the tee, Eddie approached and took the bat from Caitlin to demonstrate how to hit. Although Eddie knew Caitlin was behind him, he could not see her. He announced that he was going to swing and when he swung the bat, he not only hit the ball, but struck Caitlin in the head with the wooden bat. From defendant's vantage point on the porch, Caitlin appeared to be approximately three to six feet away from Eddie when she was hit with the bat.

Defendant rushed to assist Caitlin, brought her inside, and applied an ice pack to her swollen cheek. Caitlin's mother arrived immediately thereafter and took her daughter to the emergency room, where x-rays and CAT-scan revealed no fracture.

After the swelling subsided, the only residual symptom of the incident was a scar next to her eye.

Plaintiffs sued, alleging negligence against Eddie and negligent supervision and premises liability against defendant. Following discovery, both defendants moved for summary judgment, maintaining that Eddie was too young at the time of the incident to have been negligent; the parental immunity doctrine should be applied to the negligent supervision claim against defendant; and that there was no dangerous condition on the premises at the time of the incident. The motion judge agreed with the latter, dismissing the premises liability claim, but keeping the other two claims in tact, noting that defendant would be held to a general negligence standard.

Prior to trial, defendant moved in limine to have the judge, who was not the judge on the earlier motion, reconsider the applicable legal standard, arguing that the parental immunity doctrine applied. The trial judge agreed and, consequently, at the conclusion of the evidence, instructed the jury on the wanton or willful standard. On the verdict sheet, the jury was therefore asked: "were the actions of [defendant] in supervising her son . . . willful and wanton?", to which the jury answered "No". Accordingly, a "no cause" of action was entered.*fn2

On appeal, plaintiffs argue that the parental immunity doctrine is not applicable and that, in any event, the trial judge violated the "law of the case" doctrine, by overruling the motion judge's contrary ruling. We disagree.

The parental immunity doctrine, while limited in its application to a discrete area of parental authority -- the absence or inadequacy of a parent's supervision over his or her children -- is justified in certain circumstances that implicate "customary child-care issues or a legitimate exercise of parental authority or supervision." Buono v. Scalia, 179 N.J. 131, 138 (2004) (citing Foldi v. Jeffries, 93 N.J. 533, 549 (1983)). While the doctrine extends immunity to suits alleging negligent supervision, it does not protect a parent who has willfully or wantonly failed to watch over his or her child. Foldi, supra, 93 N.J. at 546-47. Thus, "the parental immunity doctrine . . . 'preclude[s] liability in cases of negligent supervision, but not for a parent's willful or wanton failure to supervise his or her children.'" Buono, supra, 179 N.J. at 136 (citing Foldi, supra, 93 N.J. at 549)). "Willful or wanton" ...

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