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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" has been defined as a reckless indifference to consequences, with conscious knowledge of conditions or conduct that are likely to cause injury, accompanied by an act or omission which causes the injury." Foldi, supra, 93 N.J. at 549.

While the rationale, historically, has been that the doctrine serves the purpose of preserving domestic harmony and deterring collusion amongst third-party insurers, id. at 543, modern day jurisprudence perceives a continuing need for retaining this somewhat antiquated principle. In Foldi, the Court recognized that the public is better served by judicial restraint in the familial areas of parental care, control and discipline. Ibid. "Parents should be free to determine how the physical, moral, emotional, and intellectual growth of their children can best be promoted . . . . [and] [s]uch philosophical considerations come directly to the fore in matters of parental supervision." Id. at 545. The Buono Court later reiterated that parents should be able to raise their children autonomously and free from scrutiny by the courts. Buono, supra, 179 N.J. at 144. Specifically, the Court noted that the conduct of the party being granted immunity should "fall[] within the realm of activities which partake of the everyday exigencies of regular household existence." Ibid. On the other hand, "if a parent's conduct does not implicate legitimate child-rearing issues, but simply places a third-party negligently at risk, then there would be no immunity. Buono, supra, 179 N.J. at 143 (referencing Mancinelli v. Crosby, 247 N.J. Super. 456 (App. Div. 1991)).

While previously the doctrine had been applied only to claims of minors against their own parents, Buono extended the protection of parental immunity for the first time to parents defending claims by third-parties. On this score, the Court explained:

[T]he policy concerns [articulated] in Foldi . . . embraced respect for differences in parenting philosophies and for the degree to which parents understand the uniqueness of their own children. Regardless of whether the person who seeks recovery for parents' apparent failure to keep their children from causing harm is a family member, these two policy concerns . . . work to insulate [defendant/parent] from scrutiny by judge or jury. [Id. at 141 (citations omitted)].*fn3

Thus, application of the doctrine "flows naturally from Foldi's existing policy rationale" on parental autonomy. Ibid. Any contrary holding "would lead to the incongruent result that Foldi would prevent suit against [plaintiff's] mother, but not against [defendant's] father, although both parents appear to have been exercising the same degree of supervision over their respective children." Id. at 142.

Nevertheless, plaintiffs argue that parental immunity is limited in scope and should not apply here for two reasons: first, this case is factually distinguishable from Buono and Foldi; second, the policy factors, namely family tranquility and parental autonomy, justifying application of the doctrine, do not apply here. We disagree. This case is factually similar to Buono and consequently is governed thereby.

In Buono, a five-year old boy was riding his bike in the street during a well attended block party. 179 N.J. at 134. His father was approximately five to eight feet from him at all relevant times. Id. at 134-35. The boy, who had learned to ride the bike without training wheels approximately two months prior to the incident, accidentally rode his bike into a oneand-one-half-year old girl who was walking in the street with her mom. Ibid. In upholding the summary judgment dismissal of the minor pedestrian's negligent supervision claim against the bicyclist's parent, the Court held that the defendant father's determination that his son could ride a bike within the confines of the neighborhood block party while he was only a short distance away was a valid exercise of parental decision-making, which gave rise to immunity, under the parental immunity doctrine, from plaintiff's negligent supervision claim. Id. at 141-43. The Court stated: "[u]nlike driving a motor vehicle or crossing a street, the conduct here falls within the purview of parental philosophy involving a child's upbringing[.]" Id. at 141.

We discern no meaningful difference here. On the date of the incident, Eddie was the same age as the minor bicyclist in Buono. As with the bicyclist's father in Buono, defendant here made a judgment call regarding the capability of not just her own son, but of all the children's abilities to play tee ball given their experience with the game and their knowledge of the necessary safety precautions. As noted, the parental immunity doctrine protects parents from having to defend against judgment that may be construed as poor or negligent judgment, so long as it is an honest error of judgment that is not wanton or willful. The parental autonomy rationale that justifies immunity in certain circumstances acknowledges that a parent knows best the capabilities of his or her child. These intangible, subjective factors in parental decision making can rarely be objectively weighed by a jury. Foldi, supra, 93 N.J. at 546.

Moreover, there is nothing inherently dangerous about the game of tee ball under these circumstances that would require closer parental supervision than the bike riding involved in Buono. Although a wooden bat was used, there is nothing to suggest such a piece of equipment was not customarily used in the organized setting of the game, with which Caitlin and Eddie were familiar. Furthermore, considering the totality of the circumstances, including the fact that defendant warned the children to stand back when someone was swinging the bat, there does not appear to be any reason for defendant to have expected that the bat would inflict harm or be used for any purpose other than hitting the ball off of the tee. "There are many places, such as playgrounds, picnic areas, and local parks, where parents watch over their children in seemingly safe environments, but unfortunately where mishaps and accidents do occur." Buono, supra, 179 N.J. at 142. The backyard environment, where the game of tee ball was played in this case, as it had been on prior occasions, is no different. And while defendant's judgment in allowing use of a wooden bat may be questioned, her decision nevertheless involved customary child rearing and a legitimate exercise of parental authority, to which parental immunity attaches. Unlike the mother who carelessly "jaywalked" her seven-year old daughter across a very busy trafficked avenue instead of crossing at the controlled intersection with the pedestrian crosswalk. Mancinelli, supra, 247 N.J. Super. at 458, defendant here, by allowing a game of tee ball under her watch, neither placed the children at risk nor exposed them to a commonly known inherent danger so as to fall outside the traditional realm of child rearing and therefore outside the protective mantle of the parental immunity doctrine.

Nor did application of the parental immunity doctrine in this instance violate "law of the case." This is a non-binding discretionary rule intended to avoid re-litigation before the same court of the same issue in the same controversy." Monaco v. Hartz Mt. Corp., 178 N.J. 401, 413 (2004)); see also

Pressler, Current N.J. Court Rules, comment 4 on R. 1:36-3 (2008). Generally speaking "[a] court of equal jurisdiction ha[s] no right to 'reconsider' [a legal issue] in the absence of substantially different evidence at a subsequent trial, new controlling authority, or specific findings regarding why the judgment was clearly erroneous." Monaco, supra, 178 N.J. 413 (citing Underwood v. Atl. City Racing Ass'n., 295 N.J. Super. 335, 340 (App. Div. 1996), certif. denied, 149 N.J. 140 (1997)).

As to the latter, "the law of the case doctrine does not obligate a judge to slavishly follow an erroneous or uncertain interlocutory ruling." Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 356 (App. Div. 2004). Ultimately, "the . . . doctrine is not implicated . . . by a judge's reconsideration of a prior interlocutory order." Pressler, Current N.J. Court Rules, comment 4 on R. 1:36-3 (2008).

Here, the motion judge, in holding defendant to a general negligence standard, stated simply:

I'm denying the motion as to the mother because a jury should decide as to whether or not she was negligent in watching the children . . . [s]o the test is really not willful or wanton. The test is was she negligent in supervising these children.

Parental immunity does not apply because it was not her child . . . that was injured.

This pretrial ruling is contrary to Buono and, for reasons already stated, clearly erroneous.*fn4 As such, the trial judge owed no special deference to the motion judge's interim ruling and the law of the case principle, which is discretionary in any event, simply does not apply.


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