[143 N.Y.S.2d 2] Before FOSTER, P. J., and BERGAN, HALPERN, IMRIE and ZELLER, JJ.
Michael LeSawyer, Hudson, for appellant.
Paul F. Donohue, Albany, for respondent.
During the evening of September 21, 1951, the infant plaintiff, who was then thirteen years of age, accompanied his step-father, the defendant herein, on a shopping trip to Hudson. On the way back to the farm where they resided, the defendant's automobile, which he was operating, left the highway and struck a tree and the infant plaintiff was injured. This action was instituted to recover money damages for his personal injuries. Upon the trial, the infant plaintiff was questioned concerning his relations with his step-father. He told of his own father's death when he was six years of age and his mother's marriage to the defendant three years later. He testified that
he then commenced to reside with the defendant in New York City where both his mother and step-father were employed and that each contributed to the expenses of the household until early in 1951 when his mother gave birth to a child and ceased working. He further testified that in August 1951 the defendant moved the members of his household to a farm in Columbia County and that [143 N.Y.S.2d 3] income was derived from the farm. He admitted that he called the defendant 'father', that the defendant on occasions told him what to do and that he obeyed, and that when he needed money for school purposes he received it from the defendant.
The only issues submitted to the jury were the usual ones of negligence, contributory negligence and damages. After the jury returned a verdict in favor of the infant plaintiff, the Trial Judge, on motion of the defendant, set the verdict aside and dismissed the complaint on the merits upon the ground that the defendant stood in loco parentis to the infant plaintiff and that no action for ordinary negligence could be maintained against him. After judgment was entered upon the order of the Trial Judge, this appeal was taken.
In this State, it is well recognized that an unemancipated infant is barred from maintaining an action against his natural parent for damages for personal injuries arising from ordinary negligence. Cannon v. Cannon, 287 N.Y. 425, 40 N.E.2d 236; Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551; Siembab v. Siembab, 284 A.D. 652, 134 N.Y.S.2d 437; Epstein v. Epstein, 283 A.D. 855, 129 N.Y.S.2d 54; Ciani v. Ciani, 127 Misc. 304, 215 N.Y.S. 767. Similar immunity is granted by a majority of the other states. Owens v. Auto Mutual Indemnity Co., 235 Ala. 9, 177 So. 133; Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468; Trudell v. Leatherby, 212 Cal. 678, 300 P. 7; Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753; Elias v. Collins, 237 Mich. 175, 211 N.W. 88, 52 A.L.R. 1118; Redding v. Redding, 235 N.C. 638, 70 S.E.2d 676; Matarese v. Matarese, 47 R.I. 131, 131 A. 198, 42 A.L.R. 1360; McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664, 64 L.R.A. 991; Cowgill v. Boock, 189 Or. 282, 218 P.2d 445, 19 A.L.R.2d 405; Roller v. Roller, 37 Wash. 242, 79 P. 788, 68 L.R.A. 893. The reasons for the rule have been variously expressed. In Cannon v. Cannon, supra, 287 N.Y. at pages 428, 429, 40 N.E.2d at page 237, it was said: 'We know that family unity is not created by law. But, as we have seen, the law does not fail to recognize family unity as a factor in human conduct and relationship * * *. Indeed, if within the wide scope of daily experiences common to the upbringing of a child a parent may be subjected to a suit for damages for each failure to exercise care commensurate with the risk--for each injury caused by inattention, unwise choice or even selfishness--a new and heavy burden will be added to parenthood.' A Rhode Island court in Matarese v. Matarese, supra, 47 R.I. at page 133, 131 A. at page 199, expressed
the reasons as follows: 'Any proceeding tending to bring discord into the family and disorganize its government may well be regarded as contrary to the common law, and not to be sanctioned by the courts. Such conflict would arise by recognizing the right of a minor child to bring his personal action against the father to recover damages for torts alleged to have been committed by the father in the course of the family relation, and resulting in personal [143 N.Y.S.2d 4] injury to the child.' In London Guarantee & Accident Co. v. Smith, Minn., 1954, 64 N.W.2d 781, it was stated: 'The proclaimed basis of the rule is that sound public policy forbids such actions as being inimical to the preservation of domestic tranquility and parental discipline.' 64 N.W. at page 784.
The rule and the proclaimed reasons for it have been effectively criticized by respectable authorities. (See, Prosser on Torts, § 99, pp. 905-908; McCurdy, Torts Between Persons in Domestic Relation, 43 Harvard Law Review 1030.) In Rozell v. Rozell, 281 N.Y. 106, 22 N.E.2d 254, 123 A.L.R. 1015, the Court of Appeals held that a negligence action could be maintained by an unemancipated brother against his unemancipated sister. In that case Judge Rippey, writing for a unanimous court, used these words which adequately summarize the criticisms directed at the parental nonliability rule: 'Legalistic doctrines and ancient traditions like those of identity of husband and wife and family unity between parent and child and other members of the household * * * as affecting the question of the propriety for allowing suit for personal injuries by one against another are and have been vanishing with the advent of modern means of transportation and the spread of insurance against liability of the wrongdoer and protection for the sufferer. We cannot bury our heads in the sand and ignore the new tendencies and conditions so notorious. Insurance as protection to the sufferer is now a matter of common knowledge.' 281 N.Y. at page 113, 22 N.E.2d at page 257. However, as was said in Epstein v. Epstein, 283 A.D. 855, 129 N.Y.S.2d 54, 55, supra, 'In the absence of statute or decision of our Court of Appeals limiting the general rule, an action for personal injuries resulting from negligence may not be maintained against a parent by an unemancipated minor child.'
The continued existence of the rule and the reasons advanced for it constrain us to hold that a step-parent genuinely standing in loco parentis may have immunity from suits for nonwillful negligence by a minor stepchild. If family unity will be shattered and domestic tranquility disturbed, if a heavy burden will be added to parenthood and parental ...