Appellate Division First Department Reaffirms "Interfamilial Immunity" From Contribution

The Appellate Division First Department in YA v. Conair Corp, ( 2017 NY Slip Op 7542 - NY: Appellate Div., 1st Dept. 2017) has revisited the issue of when and under what circumstances a parent may be held liable to a third party for negligent entrustment of a "dangerous instrumentality".

In Holodook v. Spencer, 36 NY 2d 35 (1974) the New York Court of Appeals held that infant plaintiffs "have no cause of action against their parents for negligent supervision". However where a third party is harmed by a parent's entrustment of a "dangerous instrumentality," a third party, in limited circumstances, may seek contribution against the parents. Nolechek v. Gesuale, 46 NY 2d 332 (1978) The Court of Appeals in Nolechek v. Gesuale found:

When a parent has negligently permitted an infant child to use a dangerous instrument, however, there has been a breach of an established duty to third persons who may be harmed. That the harm may not, in a particular case, be a direct personal injury should not absolve the parent from liability. A dangerous instrument in the hands of an infant child may foreseeably cause various types of harm: personal injury, property damage, or, as in this case, exposure to tort liability. 46 NY2d at 340

In YA v. Conair Corp, ( 2017 NY Slip Op 7542 - NY: Appellate Div., 1st Dept. 2017) G.A., parents of 2 ½ year old Y.A. , commenced a product liability suit against blender manufacture Conair Corp. for personal injuries suffered by Y.A.. Discovery determined that G.A. after purchasing the new blender opened the box but then left it unattended in the general vicinity of infant Y.A. and his 4 year old sibling I.A.. I.A. took the blender out of box, plugged it in and turned it on severely injuring 2 ½ year old Y.A.

Defendants moved Supreme Court for an order allowing amendment of their Answers to allow a counterclaim for contribution and indemnification against the parents. In affirming the denial of that motion the Appellate Division First Department found the "proposed counterclaims, as pleaded, state nothing other than a claim that plaintiff negligently supervised her own children with respect to a "common, daily household hazard[]. "

The distinguishing feature in this matter appears to be the "daily household hazard" posed by a blender, or other household items, would not rise to the level of a "dangerous instrumentality" as opposed to the hazard found with such items as "air guns" and "All-Terrain Vehicles." This case is a good reminder of the limits of the ability to bring parents into a case for contribution when they entrust a child with a supposed dangerous instrumentality.