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New Jersey: Parental Immunity For "Negligent" Failure To Supervise Claims Calls For Case-By-Case Analysis Of Defense Strategy, Liability Evaluation, And Coverage Determinations

Historically, the Doctrine of Parental Immunity barred a child from bringing a claim against his parents. Although the doctrine has been partially abrogated over time, the New Jersey Supreme Court has retained parental immunity for negligence in the exercise of parental authority or the provision of customary child care, e.g. the absence or inadequacy of a parent's supervision. Simply stated, a parent cannot be held liable for damages to his own child that resulted from the negligent parental supervision of the child's activities. This immunity applies to direct suits by the child, and also to third-party claims for contribution.

The reasoning is that parents have a right to raise their children according to their own beliefs, without undue interference from the courts. Parents should be free to determine the physical, moral, emotional, and intellectual growth of their own children. Every parent has a unique philosophy of rearing of children, and matters of parental supervision invoke these philosophical considerations. Neither a court nor a jury can evaluate such highly subjective factors without supplanting the parent's individual philosophy.

Although the traditional parental immunity has been retained for "negligent" parental supervision, the court has abrogated the immunity where the parent’s conduct is intentional or willful and wanton. In Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145 (1983), the Court expressed the concept of willful and wanton conduct as:

…the defendant with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result. Willful or wanton misconduct signifies something less than an intention to hurt. To establish that condition it is not necessary that the defendant himself recognize his conduct as being extremely dangerous; it is enough that he know, or has reason to know, of circumstances which would bring home to the realization of the ordinary reasonable man the highly dangerous character of his conduct."

In Foldi, a mother was in her garden with her two-year-old daughter, but lost sight of her daughter for five to ten minutes when the daughter wandered into the neighbor’s yard and was bitten by a dog. The daughter sued the neighbor, who sought contribution from the mother on the basis that the mother failed to supervise her daughter. The mother contended that the claim against her was barred by the Doctrine of Parental Immunity. The Court observed that whether a parent's conduct implicates parental decision-making, or whether it satisfies the "willful or wanton" exception to the immunity doctrine, depends on the totality of the circumstances, and it applied the following fact-sensitive analysis to determine whether the mother was protected by the immunity:

1. What acts or omissions by the parent was the proximate cause of the injury;

2. Whether the conduct involved the exercise of parental authority or the provision of customary child care;

3. Whether the conduct constituted a lack of parental supervision;

4. Whether a finder of fact could reasonably conclude that the conduct was willful or wanton, thereby removing it from the immunity.

Using this framework, the Court found that the mother’s conduct involved parental supervision and that her five to ten minutes of inattention was merely negligence, not willful or wanton misconduct. Thus, the Court held that the neighbor's claim for contribution was barred.

In Murray v. Shimalla, 231 N.J.Super. A.D. 103, 555 A.2d 24 (1989), a 10-year-old son sued his father for injuries sustained in a gasoline fire started by the son and his friends. The son got the gas from their unlocked shed, to which the father had permitted the son access in connection with his ATV. The court found that a jury could reasonably find that the father’s conduct was willful and wanton, as gasoline is an unreasonably dangerous substance when misused by children, and the father unreasonably exposed his son to the risk of injury from the misuse of gasoline by permitting him access to it without adult supervision.

In Mancinelli v. Crosby, 247 N.J.Super. 456, 589 A.2d 664 (1991), parents took their children across a busy street, and the mother and one child were struck by a car. They had crossed in the middle of the block, and each end of the block had controlled intersections and marked crosswalks. The mother's parental immunity defense was rejected as her conduct (judgment) involved how to safely cross a street; it did not involve how to care for or rear a child.

Each of the foregoing cases involved a claim against a parent for injuries to that parent's child. However, in Buono v. Scalia, 179 N.J. 131, 843 A.2d 1120 (2004), the claim was that the parent's negligent failure to supervise resulted in that parent's child causing an injury to someone else. A father was supervising his five-year-old son at a neighborhood block party when the son, while riding his bike, collided with and injured a 16-month-old. The Court concluded that the case invoked the same parenting philosophy considerations as in Foldi. Applying the fact-sensitive analysis, the Court ruled that the father's conduct involved the exercise of parental authority, that his conduct was no more than negligence, and that the claim against him was barred by the Doctrine of Parental Immunity.

These varied fact patterns and results demonstrate what the courts have emphasized: cases involving parental supervision that involve injuries to the parent's own child or injury or damage caused by that child to another are fact-sensitive and must be analyzed on a case-by-case basis to determine whether there is a viable cause of action. Furthermore, careful and thoughtful analysis must be given to defense strategies and case evaluations in those cases where it appears that a parent's "negligence" was the proximate cause, but the parent may be immune from liability.

In addition to the liability analysis, the application of the Doctrine of Parental Immunity to "negligent supervision" claims may result in insurance coverage questions. As "negligent" failure to supervise by a parent is subject to parental immunity, a plaintiff may allege that a parent's willful and wanton failure to supervise a child was the cause of the injury. A typical homeowner's insurance policy provides an insured (the parent) with liability coverage for damages caused by an "occurrence," which is typically defined as an accident. Does an incident resulting from a parent's willful and wanton failure to supervise a child constitute an "occurrence" that may potentially be covered? The typical homeowner's policy also contains an "intentional loss" exclusion. Would the exclusion apply? Should the claim for coverage be denied or defended pursuant to a reservation of rights?

These liability and coverage considerations should be addressed as early as possible in cases involving allegations that a parent's failure to supervise resulted in an injury to that parent's child or that child caused damages to someone else. The facts of each case are subject to individual, case-by-case analysis. This analysis should be part of the liability strategy and evaluation process, as well as determinations involving insurance coverage applicable to these claims.

*Greg, an associate in our Philadelphia, PA office, can be reached at (215) 575-4557 or gjkelley@mdwcg.com.