Zikely v. Zikely , 98 A.D.2d 815 ( 1983 )

— In a negligence action, inter alia, to recover damages for personal injuries, plaintiffs appeal from an order of the Supreme Court, Westchester County (Gurahian, J.), dated September 29,1981, which granted defendant’s motion for summary judgment pursuant to CPLR 3212 and dismissed the complaint. Order affirmed, without costs or disbursements. The infant plaintiff was injured when the defendant parent turned on a hot water faucet in a tub to prepare a bath and then left the room. The child, left unsupervised, wandered into the bathroom and fell into or otherwise entered the tub, suffering severe burns. The complaint was properly dismissed. The proximate cause of the injury was the negligent supervision of the infant (Nolechek v Gesuale, 46 NY2d 332; Holodook v Spencer, 36 NY2d 35). The dissenter’s position is untenable. The dissent seeks to take this case out of the general Holodook principle of nonliability for negligent supervision by a parent of a child by arguing that in this case the dangerous condition was created by the parent. In Nolechek u Gesuale (supra), however, it was determined that a child did not have a cause of action against his parent when the parent gave an unregistered, uninspected motorcycle to his child, who not only lacked any type of operator’s license, but who was also blind in one eye and had impaired vision in the other eye. Although the parent created a dangerous condition by his actions, and the child was then injured as a direct result of those actions (i.e., a motorcycle accident), the Court of Appeals held that the child had no cause of action against the parent. This same rule of law governs the instant situation. The dissenter’s reading of Holodook (supra), would also severely undermine the considered determination of the Court of Appeals that no cause of action for negligent parental supervision exists in this State. The dissent thus states that the three factual situations presented in Holodook derive from situations in which an unsupervised infant was injured by something which was outside the control of the parent. The Court of Appeals, however, stated (36 NY2d 35, 45, supra): “We can conceive of few, if any, accidental injuries to children which could not have been prevented, or substantially mitigated, by keener parental guidance, broader foresight, closer protection and better example. Indeed, a child could probably avoid most physical harm were he under his parents’ constant surveillance and instruction, though detriment more subtle and perhaps more harmful than physical injury might result.” Furthermore, to at least some degree the parents in Holodook took some affirmative action in creating a danger. Bringing a young child to a neighbor and letting the child loose in a yard where an eight year old is playing with a power mower or bringing a child to a playground containing an 11-foot-high slide involves some affirmative behavior on the part of the parent in creating a danger that the child, if left unsupervised, will suffer injury. If the courts choose to carve out the exception to Holodook suggested by the dissent, it becomes too easy to avoid the Holodook holding by characterizing some act by a parent as an affirmative step in creating the danger for the child. Every time a parent plugged in an iron, started a toaster, or boiled a pot of water on the stove, he would be subjected to potential liability if an unsupervised child came in contact with these common, daily household hazards in a manner which resulted in injury. To accept such a position would be to strip Holodook (supra) of a significant part of its meaning. The dissent takes the position that Holodook (supra) derives from a concern that the courts not second guess decisions involving parental discretion, and that this concern is not involved herein. Holodook, however, expresses a concern not only with a desire to keep the judiciary from excessively interjecting itself into the family relationship, but also with potential fraud problems, Dole apportionment problems (see Dole v Dow Chem. Co., 30 NY2d 143), a desire to preserve family resources for all family members, and a desire to avoid getting the courts involved in the burdensome and difficult task of drawing lines as to the proper level of supervision a parent must exercise over his child in each individual case. Although not each of these concerns will be involved in every negligent supervision case, the question of the proper level of supervision required for a child while a bath is being prepared for the child implicates these considerations to a sufficient degree to require a conclusion that the facts herein constituted only negligent supervision. Accordingly, the complaint was properly dismissed. Damiani, J. P., Thompson and Boyers, JJ., concur.