Hairston v. Broadwater

8 Citing cases

  1. Lastowski v. Norge Coin-O-Matic

    44 A.D.2d 127 (N.Y. App. Div. 1974)   Cited 12 times
    In Lastowski v Norge Coin-O-Matic (44 A.D.2d 127 [cited with approval in Holodook, supra]), Judge SHAPIRO gave illustrations of injuries due to alleged lack of parental supervision, among them one not unlike the case at bar, to justify the conclusion that no such cause of action exists.

    The following cases involved the question before us: Holodook v. Spencer ( 43 A.D.2d 129); Searles v. Dardani ( 75 Misc.2d 279); Marrero v. Just Cab Corp. ( 71 Misc.2d 474); Collazo v. Manhattan Bronx Surface Tr. Operating Auth. ( 72 Misc.2d 946); Fake v. Terminal Hardware ( 73 Misc.2d 39); Hairston v. Broadwater ( 73 Misc.2d 523); and Miller v. Cross ( 75 Misc.2d 940), all of which involved child pedestrians injured while on the street or public highway; Kiernan v. Jones ( 73 Misc.2d 829); and Sorrentino v. United States ( 344 F. Supp. 1308), which involved children injured while allowed by their parents to ride bicycles on the public highway; Salley v. Weiss ( 74 Misc.2d 619); and Morales v. Moss ( 44 A.D.2d 687 [decided herewith]), both of which involved infant plaintiffs injured by ingestion of poisonous paint chips and flakes in their parents' apartments; Ryan v. Fahey ( 43 A.D.2d 429) ; and Northrop v. Hogestyn ( 75 Misc.2d 486), each of which involved a cross claim by a defendant against the injured infant's parent based on allegations that negligent parental supervision contributed to the infant's injuries. The cases of Bilgore v. Rennie ( 72 Misc.2d 639), involving a child injured while riding an allegedly defective bicycle suing the seller of the bicycle; Meade v. Roberts ( 71 Misc.2d 120), involving

  2. Nocktonick v. Nocktonick

    227 Kan. 758 (Kan. 1980)   Cited 54 times
    Holding minor may sue parent for automobile negligence and declining to otherwise define scope of doctrine

    New Hampshire — Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966); New York — Hairston v. Broadwater, 73 Misc.2d 523, 342 N.Y.S.2d 787 (1973);Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 (1969);

  3. Ryan v. Fahey

    43 A.D.2d 429 (N.Y. App. Div. 1974)   Cited 6 times
    In Ryan v. Fahey (43 A.D.2d 429, 430, supra) Mr. Justice MOULE, writing for a unanimous court, posed the question before the court and gave its answer in the following manner: "The question we are here called upon to decide is whether a non sui juris child, injured while at play, can bring a lawsuit against his mother for failing to properly supervise his activities.

    We are aware that some nisi prius courts have expressed the view that causes of action based upon negligent supervision can be sustained, but only in cases where the infant plaintiff alleges the existence of sufficient special circumstances to put the parent on notice of a need for an unusual degree of supervision. ( Miller v. Cross, 75 Misc.2d 940; Salley v. Weiss, 74 Misc.2d 619; Kiernan v. Jones, 73 Misc.2d 829; Hairston v. Broadwater, 73 Misc.2d 523; Fake v. Terminal Harware, 73 Misc.2d 39; Collazo v. Manhattan Bronx Surface Tr. Operating Auth., 72 Misc.2d 946; Bilgore v. Rennie, 72 Misc.2d 639; Marrero v. Just Cab Corp., 71 Misc.2d 474.) These cases conclude that this added pleading requirement works a comfortable accommodation between society's interest in allowing a parent some leeway in the manner in which he chooses to raise his child and the countervailing interest which the law has in providing a remedy where there is a wrong.

  4. Graney v. Graney

    43 A.D.2d 207 (N.Y. App. Div. 1973)   Cited 3 times

    Some of these cases recognizing that a child may sue a parent for nonwillful torts, including ordinary negligence, have permitted impleader to allow the alleged tort-feasor to recover from the parents of the infant that part of the damages apportionable to the contribution of the negligence of the parent. ( Sorrentino v. United States, 344 F. Supp. 1308 [infant riding his bicycle on public highway]; Petersen v. City and County of Honolulu, 51 Haw. 484 [infant burned by hot ashes in barbecue pit]; Searles v. Dardani, 75 Misc.2d 279 [infant pedestrian hit by automobile]; Orphan v. Relyea, 73 Misc.2d 1098 [infant injured by explosion of sauna heater]; Hairston v. Broadwater, 73 Misc.2d 523 [infant pedestrian hit by automobile].) In my opinion, the holding in Gelbman completely abolished the doctrine of intrafamily tort immunity in New York and, under the circumstances here, the complaint should not have been dismissed.

  5. Munn v. Morris

    42 A.D.2d 545 (N.Y. App. Div. 1973)

    The most likely case, as we have here, is the husband-wife situation where one spouse is the owner and being driven by the other spouse. Recently, in a very thorough analysis of a Dole-Kelly situation involving an interpretation of Gelbman v. Gelbman ( 23 N.Y.2d 434) where a mother was permitted to sue her minor child, Justice Bertram Harnett in Hairston v. Broadwater ( 73 Misc.2d 523), discussed the question of contribution between joint tort-feasors with an intrafamilial tort situation, and made it obvious that the question of contribution was uppermost. In a situation similar to the case before us, where a husband and wife were suing in an automobile negligence case ( Katz v. Dykes, 41 A.D.2d 913) this court held that "the negligence of the husband-operator may not be imputed to his passenger wife".

  6. Long Island Lighting Co. v. Hartford Accident & Indemnity Co.

    76 Misc. 2d 832 (N.Y. Sup. Ct. 1973)   Cited 13 times   2 Legal Analyses
    In Long Island Lighting Company v. Hartford Accident and Indemnity Company, 76 Misc.2d 832, 350 N.Y.S.2d 967 (Sup.Ct. 1973), the court considered an identical policy provision.

    The employee is barred from suing the employer by Workmen's Compensation Law ( Garcia v. Iserson, 42 A.D.2d 776), but is the defendant barred from seeking Dole apportionment? (See Witzenberg v. James King Son, N.Y.L.J., Dec. 5, 1973, p. 19, col. 5; cf. Hairston v. Broadwater, 73 Misc.2d 523; Zillman v. Meadowbrook Hosp. Co., 73 Misc.2d 726; cf. State Farm Mut. Auto. Ins. Co. v. Westlake, 74 Misc.2d 604 and Smith v. Employer's Fire Ins. Co., 72 Misc.2d 524, with United States Fid Guar. Co. v. Franklin, 74 Misc.2d 506. ) We do not have that issue before us here, except in our positing LILCO's remedies to avoid its becoming liable in whole judgment for "acts or omissions" of McGovern's employees in operating the truck. Even so, whichever way it goes under Dole, or how payment is enforced between joint tort-feasors, we hold that a stranger to the vehicle (such as LILCO here) with a potential for being left holding the whole collectibility bag as a joint tort-feasor, is not transformed by that possibility into an "insured" under McGovern's policy.

  7. Searles v. Dardani

    75 Misc. 2d 279 (N.Y. Sup. Ct. 1973)   Cited 5 times

    Some Judges have found that Sorrentino v. United States ( 344 F. Supp. 1308, supra) was based on a misinterpretation of the Gelbman decision ( 23 N.Y.2d 434, supra), which they read as permitting an infant to sue a parent only when the latter is protected against personal liability by compulsory insurance ( Kiernan v. Jones, 73 Misc.2d 829). However, this court has rejected such a narrow interpretation of the Gelbman holding ( Orphan v. Relyea, 73 Misc.2d 1098; accord: Hairston v. Broadwater, 73 Misc.2d 523; Holodook v. Spencer, 73 Misc.2d 181, supra). Another line of cases has rejected counterclaims seeking contribution from the parent for failure to allege facts showing that the parent had a duty to supervise the child ( Fake v. Terminal Hardware, 73 Misc.2d 39; Bilgore v. Rennie, 72 Misc.2d 639; Marrero v. Just Cab Co., 71 Misc.2d 474).

  8. Caucci v. Fesko

    76 Misc. 2d 614 (N.Y. Sup. Ct. 1973)   Cited 1 times

    While there has been no defense or issue of fact raised pertaining to the motion for contribution it is to be noted that movants have submitted an attorney's affidavit in support of their motion although better procedure requires that both the insurer and its insured should join in the motion ( Harper v. Wayma, 189 Misc. 348; cf. Mosca v. Pensky, 73 Misc.2d 144, 161, revd. on other grounds 42 A.D.2d 708). The fact that Caggiano lacks insurance coverage for the amount owed on a contribution theory also is not relevant (cf. Hairston v. Broadwater, 73 Misc.2d 523). There being no issue herein of 100% indemnity ( Rogers v. Dorchester Assoc., 32 N.Y.2d 553) and since movants constitute one class of defendants ( Liebman v. County of Westchester, 71 Misc.2d 997, 1008, supra), the motion for contribution is granted.