Opinion
DOCKET NO. A-1721-12T4
02-04-2014
JOHN PALESKI, Plaintiff-Appellant, v. JONNA C. CALI, Defendant-Respondent.
Lani M. Dagastino argued the cause for appellant (Seidman & Pincus, LLC, attorneys; Mitchell B. Seidman, Andrew J. Pincus and Phyllis Barker, on the briefs). Lewis M. Markowitz argued the cause for respondent (Gutterman, Markowitz & Klinger, LLP, attorneys; Mr. Markowitz, of counsel and on the brief; Frank W. Farrell, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Simonelli and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1418-10.
Lani M. Dagastino argued the cause for appellant (Seidman & Pincus, LLC, attorneys; Mitchell B. Seidman, Andrew J. Pincus and Phyllis Barker, on the briefs).
Lewis M. Markowitz argued the cause for respondent (Gutterman, Markowitz & Klinger, LLP, attorneys; Mr. Markowitz, of counsel and on the brief; Frank W. Farrell, on the brief). PER CURIAM
In this matter, plaintiff John Paleski sought damages from his ex-wife, defendant Jonna C. Cali, for her alleged negligent supervision of their teenaged son. The trial judge granted defendant's motion to dismiss the complaint with prejudice pursuant to Rule 4:37-2(b), and denied plaintiff's motion for reconsideration. The judge found as a matter of law that plaintiff failed to present a cognizable claim against plaintiff. We agree and affirm.
The judge also dismissed plaintiff's breach of contract and trespass claims with prejudice. Plaintiff does not appeal from those rulings.
We derive the following facts from the record. Plaintiff and defendant were married in 1989, and divorced in 1997. They have joint legal custody of their two sons, A.P. and D.P., with defendant having primary residential custody. In 2008, plaintiff gave A.P. permission to have some friends come to his home for a card game while he was away; however, A.P. had a party instead. When plaintiff returned, he discovered that some jewelry was missing. He allegedly told defendant that he thereafter would not allow his sons in his home while he was away.
We use initials to identify the parties' sons in order to protect their privacy.
Plaintiff claimed that in the fall of 2009, when D.P. was seventeen-years old, he told defendant he was planning a trip to South America and did not want their sons in his home while he was away. Plaintiff left on September 18, 2009, leaving a key to his home for his sons under a doormat, as he had done in the past. While he was away, D.P. defied defendant and went to plaintiff's home and had a party. When plaintiff returned on October 4, 2009, he found that a back window had been broken and there were empty beer and champagne bottles around his property. Approximately two weeks later, plaintiff discovered that jewelry valued over $38,000 and $200 in cash were missing.
Plaintiff sought to hold defendant responsible for the 2009 incident under a negligent supervision theory. He asserted that defendant had a duty to supervise D.P.'s conduct and breached that duty by failing to prevent their son from entering his home during his absence and having a party. In dismissing that claim, the trial judge found that as a matter of law, there was no authority permitting a negligent supervision cause of action between parents of a child, and that as a matter of public policy, the tort of negligent supervision of a child does not permit one parent to sue the other parent for damages the child caused. On appeal, plaintiff contends the judge erred because Mazzilli v. Selger, 13 N.J. 296 (1953) and Morella v. Machu, 235 N.J. Super. 604 (App. Div. 1989) expressly recognize a cause of action between parents for negligent supervision of a child. Plaintiff is incorrect.
In Mazzilli, a nine-year-old child shot the plaintiff with a shotgun. Mazzilli, supra, 13 N.J. at 298. Although still legally married at the time of the shooting, the child's parents were living in separate residences; the mother had legal and residential custody. Id. at 302. In a fact-sensitive analysis that included the mother's awareness of the shotgun in the room the child shared with his eighteen-year-old half-brother, the weapon's accessibility by the child, including ammunition, a history of the child using firearms, and the mother's role as the child's exclusive custodial parent, our Supreme Court held that the mother had a legal duty to supervise her child in a manner that would not expose the plaintiff to an unreasonable risk of harm. Id. at 302-305. The Court stated that "the duty rested upon [the mother] to use reasonable care that such lethal weapon would not be discharged except under competent supervision or by competent and legally authorized persons." Id. at 304-05.
In Morella, teenagers had a drinking party in their parents' home while the parents were away. Morella, supra, 235 N.J. Super. at 606-07. An intoxicated underage partygoer injured the plaintiff while driving after the party. Id. at 608. We held that the parents had a duty to the public to exercise reasonable care to arrange for competent supervision of their teenagers while they were away, and were subject to damages if they breached that duty. Id. at 611.
Neither Mazzilli nor Morella addressed, or created a cause of action for, negligent supervision between parents of a child. In contrast, the doctrine of parental immunity shields a parent from liability for the negligent supervision of a child in matters, such as those existing in here, involving customary child-care issues or the exercise of parental authority or supervision. Foldi v. Jeffries, 93 N.J. 533, 551 (1983); see also Buono v. Scalia, 179 N.J. 131, 141 (2004 ) (holding that parental immunity applies to matters involving the exercise of parental decision-making). Thus, the judge was correct that as a matter of law there is no authority permitting a negligent supervision cause of action between parents of a child, and that as a matter of public policy, the tort of negligent supervision of a child does not permit a parent to sue the other parent for damages the child caused.
Having reached this conclusion, we need not address plaintiff's contention that the judge usurped the jury's function in granting the motion for involuntary dismissal pursuant to Rule 4:37-2(b).
--------
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION