73 Misc. 2d 181 | N.Y. Sup. Ct. | 1973
Before Dole v. Dow Chem. Co. (30 N Y 2d 143) and Kelly v. Long Is. Light. Co. (31 N Y 2d 25) the issue herein would have been considered to be so academic that it would not have engaged the attention of either the attorneys or the court.
A four-year-old boy darts ¡between.two parked cars and is struck by the defendant and sustains personal injuries. The
The Dole and Kelly cases (supra), together with the change in policy respecting the right of a child to sue his parent ili ordinary negligence as enunciated in Gelbman v. Gelbman (23 N Y 2d 434), compel a new look not only at the familial relationship but also at the issue of when a child is, presumed to be (rebut-table), or is not, sui juris. If a child can now sue his parent in v. ordinary negligence it must be presumed that a parent has a duty of refraining from conduct, not reasonable and prudent, that might injure his child. If he does not and that failure proximately causes injury to his child, then he must respond in damages. It is unclear, however, that a parent has an obligation and duty to refrain from conduct, passive as well as active, that proximately exposes his child to danger and injury by the conduct of a third person. If he has such a duty, does the failure to exercise it open himjto suit by a third party who injures his child? If he has such a duty, is it dischargeable only to a non sui juris infant ? Does the duty cease when the infant attains an age that equips him with sufficient judgment to- look out for himself? If he has such a duty, does the failure to exercise the proper care constitute prima-facie or rebuttable negligence?
Mr. Justice Helmah in Marrero v. Just Cab Corp. (71 Misc 2d 474), in refusing to permit the defendant to amend its answer só as to counterclaim against the mother- of an eight-year-old for negligently permitting Ihe child to be on the street without adult supervision, bottomed his holding on the view that a pleading alleging negligence of parents of an eight-year-old child, on unattendance alone, fails to state^a cause of action. Mr. Justice Helmah adhered .to the'view that the law of this State did not impose either per se or prima facie negligence on a parent of a child, even a .non sui juris child^for “ The temporary incursion of the child into the roadway ’’ (Marrero v. Just Cab Corp., supra, p. 476; Dehmann v. Beck, 61 App. Div. 505, 507). The learned Justice was of the. view, at least with respeet to infants