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WILSON v. WESTMORELAND FARM

January 8, 1998

TARA F. WILSON, et al., Plaintiff(s),
v.
WESTMORELAND FARM, INC., et al., Defendant(s).



The opinion of the court was delivered by: BOYLE

ORDER

 Before the court is an application under Rule 14 of the Federal Rules of Civil Procedure, by the defendant, Westmoreland Farm, Inc. ("WMF"), to initiate a third-party action against Margaret K. Wilson, the natural mother and guardian of the infant plaintiff herein, who suffered severe facial injuries when she was kicked by a horse owned by two individual defendants, Elmer and Diane Kestler. The accident occurred on property owned and controlled by WMF and the Kestler defendants. Jurisdiction is based on diversity of citizenship. See 28 U.S.C. § 1332(a)(1).

 For the reasons stated below, the application is denied.

 I. FAILURE TO ADEQUATELY PLEAD A COGNIZABLE ACTION

 Negligent failure to supervise a child is not a cognizable action under the common law of the State of New York. See Holodook v. Spencer, 36 N.Y.2d 35, 51, 324 N.E.2d 338, 346, 364 N.Y.S.2d 859, 871 (1974) (no cause of action where mother of infant failed to control the child who "darted out" from between parked cars before being struck by the defendant's car). There are substantial reasons behind this policy: "The mutual obligations of the parent-child relation derive their strength and vitality from such forces as natural instinct, love and mortality, and not from the essentially negative compulsions of the law's directives and sanctions.. ." Id. at 50, 324 N.E.2d at 346, 364 N.Y.S.2d at 871.

 This policy is consistent with New York General Obligation Law § 3-111 which states that "in an action brought by an infant to recover damages for personal injury the contributory negligence of the infant's parent or other custodian shall not be imputed to the infant." N.Y. Gen. Oblig. Law § 3-111 (McKinney 1997). New York does, however, recognize a cause of action against a parent for affirmative negligent conduct. See Nolechek v. Gesuale, 46 N.Y.2d 332, 336, 385 N.E.2d 1268, 1270, 413 N.Y.S.2d 340, 343 (1978). In Nolechek, the father sued the defendants for negligence in causing the wrongful death of his son, who was killed in a collision while riding a motorcycle. The court permitted a claim by the defendants against the father based on the allegations that the father had provided his infant son with a motorcycle even though the son was blind in one eye and had impaired vision in the other. Id. at 335-336, 385 N.E.2d at 1270, 413 N.Y.S.2d at 342.

 The most recent decision by the New York Court of Appeals in this area is La Torre v. Genesee Management, Inc., 90 N.Y.2d 576, 687 N.E.2d 1284, 665 N.Y.S.2d 1, 1997 WL 668359, at *1 (N.Y. 1997). The plaintiff, a twenty year old mentally impaired person, had accompanied his mother to the mall where he became involved in an altercation with security guards who had used physical force to take plaintiff into custody in connection with an arrest. The defendants sought contribution and indemnification from plaintiff's mother on the theory that she had knowledge of her son's anti-social "propensities and tendencies" and that she, therefore, should not have permitted him "to be left alone [without] the control and supervision of his mother or persons of suitable age, training and experience in the problems and behaviors of mentally handicapped individuals." Id.

 In rejecting the third-party complaint for lack of sufficiency, the court noted the lack of specificity in the pleading as to the parent's knowledge of the dangerous propensity, as well as the lack of specifics as to the acts of negligence:

 
Defendants' conclusory, generalized assertion is patently insufficient under presently governing principles to satisfy the requisite pertinent knowledge of the kind of dangerous propensities, attributed to plaintiff's mother, that would place this case in a Nolechek-like category. In order for a third-party claim of this kind against a parent or guardian to withstand the force of Holodook, negligence must be alleged and pleaded with some reasonable specificity, beyond mere generalities. The extraordinariness or patent foreseeability of the particular situation are factors to be considered in determining whether a claim may be allowed to stand that would drive the entire family into a conflicted litigation experience.

 Id. at *5.

 The proposed pleading by WMF suffers from the same defect. The relevant allegations of the third-party action are replete with vague generalities:

 
COUNT 1
 
4. . . . MARGARET K. WILSON . . . exercised maintenance, control, supervision, care over and harbored the horse Penny.
 
5. . . . MARGARET K. WILSON . . . occupied, possessed and exercised maintenance, control and/or supervision over that parcel of real property ...

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