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Bader v. Purdom

decided: March 3, 1988.

DEBRA BADER, AN INFANT BY HER FATHER AND NATURAL GUARDIAN, ALLAN BADER, AND ALLAN BADER, PLAINTIFFS,
v.
ROBERT PURDOM AND BEVERLY PURDOM, DEFENDANTS-THIRD-PARTY PLAINTIFFS-APPELLANTS, V. ALLAN BADER AND FRAN BADER, THIRD-PARTY DEFENDANTS-APPELLEES



Appeal from a judgment entered in the United States District Court for the Eastern District of New York (Korman, J.), granting summary judgment in favor of appellees Allan and Fran Bader and dismissing appellants' third-party complaint upon the application of New York, rather than Ontario, law. Reversed and remanded.

Lumbard, Pierce and Miner, Circuit Judges.

Author: Miner

MINER, Circuit Judge:

Appellants Robert and Beverly Purdom appeal from a judgment entered in the United States District Court for the Eastern District of New York (Korman, J.), granting summary judgment in favor of appellees Allan and Fran Bader and dismissing the Purdoms' third-party complaint. We reverse on the ground that Ontario, not New York, law applies to the Purdoms' third-party complaint, and remand for further proceedings.

BACKGROUND

In August and early September of 1982, Allan and Fran Bader and their three children, all United States citizens residing in New York, visited Robert and Beverly Purdom and their two children, Canadian citizens, at the Purdoms' farm in Ontario, Canada. According to the Purdoms, the Bader children, especially four-year old Debra, were overly attentive to the Purdoms' dog, Happy. The Purdoms assert that after observing the Baders' constant attention to Happy, Mrs. Purdom warned the Bader family to leave the dog alone and instructed them not to let the dog into the house during mealtimes.

On the morning of September 1, 1982, the Baders were seated at the kitchen table eating breakfast. Debra, who was sitting on her mother's lap, was trying to play with Happy, who was under the table. Mrs. Purdom alleges that immediately before the accident, she saw Mrs. Bader set Debra on the floor underneath the table, presumably to play with the dog. Moments later, Debra screamed. Unhappily, Happy had attacked and injured Debra.

In March 1984, Allan Bader, on behalf of himself and his daughter, Debra, commenced this action against the Purdoms in the United States District Court for the Eastern District of New York, seeking money damages for Debra's personal injuries and loss of Debra's services. In June 1984, the Purdoms answered, and in July 1984, they filed a third-party complaint against Allan and Fran Bader, seeking indemnification and contribution for the Baders' negligence and negligent supervision of Debra. The Purdoms' claims were based generally on the laws of the Province of Ontario, Canada, and specifically upon an Ontario statute, The Dog Owner's Liability Act, Ont. Rev. Stat. ch. 65 (1980).

The Baders moved to dismiss the Purdoms' third-party complaint, pursuant to Fed. R. Civ. P. 12(b)(6), on the grounds that New York law applied to the third-party action, and that New York did not recognize a claim against parents for the negligent supervision of their children. The district court agreed. The court found that the lex loci delecti rule ordinarily employed by New York did not apply to the third-party action because New York's strong policy interest in barring negligent parental supervision suits constituted "extraordinary circumstances," justifying departure from the lex loci delecti rule. By order dated April 29, 1985, the court dismissed the third-party claims that were grounded in negligent parental supervision.

After discovery, the Baders moved for summary judgment and dismissal of the remainder of the third-party complaint. By order dated March 27, 1987, the court granted these motions, finding that the only tortious acts allegedly committed by the Baders sounded in negligent parental supervision. On March 30, 1987, judgment was entered accordingly.

Discussion

As a threshold matter, the district court was bound to apply New York choice of law rules to the third-party action because New York was the forum state. See Machleder v. Diaz, 801 F.2d 46, 51 (2d Cir. 1986), cert. denied sub nom. Machelder v. CBS, Inc., 1075. Ct. 1294 (1987).

New York employs an "interest analysis" to resolve choice of law conflicts: "'[T]he law of the jurisdiction having the greatest interest in the litigation will be applied and . . . the [only] facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict.'" Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 197, 491 N.Y.S.2d 90, 95, 480 N.E.2d 679 (1985) (citations omitted). "Under this formulation, the significant contacts are, almost exclusively, the parties' domiciles and the locus of the tort." Id. (citations omitted).

If New York law applies to the present case, the third-party plaintiffs will not be able to recover on the negligent supervision claim, because New York does not permit third parties under such circumstances to recover against a parent for negligent supervision of his child. The New York rule derives from the doctrine of intrafamily tort immunity, which prohibits a child from recovering damages for his parents' negligent supervision. As a corollary to this doctrine, New York law does not permit a nonparent tortfeasor, whose negligence has injured a child, to recover contribution from the child's parents under a theory of negligent supervision because (1) parents who are vulnerable to suits for contribution might be reluctant to assert their children's rights against third parties; (2) family tensions may increase in the event that parents do sue, and are subsequently held liable for contribution; (3) requiring contribution from the negligent parent may effectively reduce the child's compensation, given that the typical family is a "single economic unit;" and (4) the state ...


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