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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2402-07T12402-07T1
SHARON E. KANE, INDIVIDUALLY AND
AS GUARDIAN AD LITEM FOR THE
MINOR, CAITLIN CLARKE, AND
CAITLIN CLARKE,
Plaintiffs-Appellants,
v.
SANDRA HATCH and EDDIE HATCH,
Defendants-Respondents.
Submitted October 22, 2008 - Decided
Before Judges Parrillo and Messano.
On appeal from the Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-6294-05.
Segal & Burns, P.A., attorneys for appellant (Patrick Conner, on the brief).
Green, Lundgren & Ryan, P.C., attorneys for respondent (Daniel J. DiStasi and Alexa J. Nasta, on the
brief).
PER CURIAM
In this negligent parental supervision case, plaintiffs Sharon Kane, individually and as guardian ad litem for minor
plaintiff Caitlin Clarke, appeal from a final judgment in favor of defendant Sandra Hatch (defendant) following a jury
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verdict of no cause of action, finding defendant's conduct was neither willful nor wanton. At issue is the propriety of
the trial judge's ruling that the parental immunity doctrine applied, reversing an earlier ruling to the contrary by
another judge. We affirm.
This matter arises from a September 29, 2003 incident wherein five-year old Caitlin was injured after being
accidentally struck with a wooden baseball bat by her five-year old playmate, neighbor Eddie Hatch, during a game
of tee ball in Eddie's backyard, while Eddie's mother, Sandra, watched from her screened-in porch only seven feet
away. Earlier that day,
Caitlin, Eddie and another five-year old friend, MacKenzie, were playing together in Eddie's backyard tree house and
swing set when they decided to play tee ball. Both Caitlin and Eddie had played organized tee ball the previous
Spring season.
Just prior to play, defendant told the children to be careful and to stand back when the other was swinging
the wooden bat. She went back inside from where, otherwise unengaged, she watched the children, approximately
five to seven feet away, from an enclosed porch that was connected to the house, but which jutted out into the
backyard. She could see the children through glass sliding doors and also hear them because the porch had eight
windows, all of which had screens and were open at the time.
Caitlin and Mackenzie began taking turns hitting the tee ball off the tee, using the wooden bat, while Eddie
waited in the distance to field the balls that were hit off the tee into the yard. Because Caitlin and Mackenzie were
struggling to hit the ball off the tee, Eddie approached and took the bat from Caitlin to demonstrate how to hit.
Although Eddie knew Caitlin was behind him, he could not see her. He announced that he was going to swing and
when he swung the bat, he not only hit the ball, but struck Caitlin in the head with the wooden bat. From
defendant's vantage point on the porch, Caitlin appeared to be approximately three to six feet away from Eddie
when she was hit with the bat.
Defendant rushed to assist Caitlin, brought her inside, and applied an ice pack to her swollen cheek. Caitlin's
mother arrived immediately thereafter and took her daughter to the emergency room, where x-rays and CAT-scan
revealed no fracture. After the swelling subsided, the only residual symptom of the incident was a scar next to her
eye.
Plaintiffs sued, alleging negligence against Eddie and negligent supervision and premises liability against
defendant. Following discovery, both defendants moved for summary judgment, maintaining that Eddie was too
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young at the time of the incident to have been negligent; the parental immunity doctrine should be applied to the
negligent supervision claim against defendant; and that there was no dangerous condition on the premises at the
time of the incident. The motion judge agreed with the latter, dismissing the premises liability claim, but keeping
the other two claims in tact, noting that defendant would be held to a general negligence standard.
Prior to trial, defendant moved in limine to have the judge, who was not the judge on the earlier motion, reconsider
the applicable legal standard, arguing that the parental immunity doctrine applied. The trial judge agreed and,
consequently, at the conclusion of the evidence, instructed the jury on the wanton or willful standard. On the
verdict sheet, the jury was therefore asked: "were the actions of [defendant] in supervising her son . . . willful and
wanton?", to which the jury answered "No". Accordingly, a "no cause" of action was entered.
On appeal, plaintiffs argue that the parental immunity doctrine is not applicable and that, in any event, the
trial judge violated the "law of the case" doctrine, by overruling the motion judge's contrary ruling. We disagree.
The parental immunity doctrine, while limited in its application to a discrete area of parental authority - the
absence or inadequacy of a parent's supervision over his or her children - is justified in certain circumstances that
implicate "customary child-care issues or a legitimate exercise of parental authority or supervision." Buono v. Scalia,
179 N.J. 131, 138 (2004) (citing Foldi v. Jeffries, 93 N.J. 533, 549 (1983)). While the doctrine extends immunity to suits
alleging negligent supervision, it does not protect a parent who has willfully or wantonly failed to watch over his or
her child. Foldi, supra, 93 N.J. at 546-47. Thus, "the parental immunity doctrine . . . 'preclude[s] liability in cases of
negligent supervision, but not for a parent's willful or wanton failure to supervise his or her children.'" Buono, supra,
179 N.J. at 136 (citing Foldi, supra, 93 N.J. at 549)). "Willful or wanton" has been defined as a reckless indifference to
consequences, with conscious knowledge of conditions or conduct that are likely to cause injury, accompanied by
an act or omission which causes the injury." Foldi, supra, 93 N.J. at 549.
While the rationale, historically, has been that the doctrine serves the purpose of preserving domestic
harmony and deterring collusion amongst third-party insurers, id. at 543, modern day jurisprudence perceives a
continuing need for retaining this somewhat antiquated principle. In Foldi, the Court recognized that the public is
better served by judicial restraint in the familial areas of parental care, control and discipline. Ibid. "Parents should
be free to determine how the physical, moral, emotional, and intellectual growth of their children can best be
promoted . . .                                                                                                               . [and] [s]uch philosophical considerations come directly to the fore in matters of parental
supervision." Id. at 545. The Buono Court later reiterated that parents should be able to raise their children
autonomously and free from scrutiny by the courts. Buono, supra, 179 N.J. at 144. Specifically, the Court noted that
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the conduct of the party being granted immunity should "fall[] within the realm of activities which partake of the
everyday exigencies of regular household existence." Ibid. On the other hand, "if a parent's conduct does not
implicate legitimate child-rearing issues, but simply places a third-party negligently at risk, then there would be no
immunity. Buono, supra, 179 N.J. at 143 (referencing Mancinelli v. Crosby, 247 N.J. Super. 456 (App. Div. 1991)).
While previously the doctrine had been applied only to claims of minors against their own parents, Buono
extended the protection of parental immunity for the first time to parents defending claims by third-parties. On this
score, the Court explained:
[T]he policy concerns [articulated] in Foldi . . . embraced respect for differences in
parenting philosophies and for the degree to which parents understand the
uniqueness of their own children. Regardless of whether the person who seeks
recovery for parents' apparent failure to keep their children from causing harm is a
family member, these two policy concerns . . . work to insulate [defendant/parent] from
scrutiny by judge or jury.
[Id. at 141 (citations omitted)].
Thus, application of the doctrine "flows naturally from Foldi's existing policy rationale" on parental autonomy. Ibid.
Any contrary holding "would lead to the incongruent result that Foldi would prevent suit against [plaintiff's]
mother, but not against [defendant's] father, although both parents appear to have been exercising the same
degree of supervision over their respective children." Id. at 142.
Nevertheless, plaintiffs argue that parental immunity is limited in scope and should not apply here for two
reasons: first, this case is factually distinguishable from Buono and Foldi; second, the policy factors, namely family
tranquility and parental autonomy, justifying application of the doctrine, do not apply here. We disagree. This case
is factually similar to Buono and consequently is governed thereby.
In Buono, a five-year old boy was riding his bike in the street during a well attended block party. 179 N.J. at
134. His father was approximately five to eight feet from him at all relevant times. Id. at 134-35. The boy, who had
learned to ride the bike without training wheels approximately two months prior to the incident, accidentally rode
his bike into a one-and-one-half-year old girl who was walking in the street with her mom. Ibid. In upholding the
summary judgment dismissal of the minor pedestrian's negligent supervision claim against the bicyclist's parent,
the Court held that the defendant father's determination that his son could ride a bike within the confines of the
neighborhood block party while he was only a short distance away was a valid exercise of parental decision-making,
which gave rise to immunity, under the parental immunity doctrine, from plaintiff's negligent supervision claim. Id.
at 141-43. The Court stated: "[u]nlike driving a motor vehicle or crossing a street, the conduct here falls within the
purview of parental philosophy involving a child's upbringing[.]" Id. at 141.
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We discern no meaningful difference here. On the date of the incident, Eddie was the same age as the minor
bicyclist in Buono. As with the bicyclist's father in Buono, defendant here made a judgment call regarding the
capability of not just her own son, but of all the children's abilities to play tee ball given their experience with the
game and their knowledge of the necessary safety precautions. As noted, the parental immunity doctrine protects
parents from having to defend against judgment that may be construed as poor or negligent judgment, so long as
it is an honest error of judgment that is not wanton or willful. The parental autonomy rationale that justifies
immunity in certain circumstances acknowledges that a parent knows best the capabilities of his or her child. These
intangible, subjective factors in parental decision making can rarely be objectively weighed by a jury. Foldi, supra,
93 N.J. at 546.
Moreover, there is nothing inherently dangerous about the game of tee ball under these circumstances that
would require closer parental supervision than the bike riding involved in Buono. Although a wooden bat was used,
there is nothing to suggest such a piece of equipment was not customarily used in the organized setting of the
game, with which Caitlin and Eddie were familiar. Furthermore, considering the totality of the circumstances,
including the fact that defendant warned the children to stand back when someone was swinging the bat, there
does not appear to be any reason for defendant to have expected that the bat would inflict harm or be used for any
purpose other than hitting the ball off of the tee. "There are many places, such as playgrounds, picnic areas, and
local parks, where parents watch over their children in seemingly safe environments, but unfortunately where
mishaps and accidents do occur." Buono, supra, 179 N.J. at 142. The backyard environment, where the game of tee
ball was played in this case, as it had been on prior occasions, is no different. And while defendant's judgment in
allowing use of a wooden bat may be questioned, her decision nevertheless involved customary child rearing and a
legitimate exercise of parental authority, to which parental immunity attaches. Unlike the mother who carelessly
"jaywalked" her seven-year old daughter across a very busy trafficked avenue instead of crossing at the controlled
intersection with the pedestrian crosswalk. Mancinelli, supra, 247 N.J. Super. at 458, defendant here, by allowing a
game of tee ball under her watch, neither placed the children at risk nor exposed them to a commonly known
inherent danger so as to fall outside the traditional realm of child rearing and therefore outside the protective
mantle of the parental immunity doctrine.
Nor did application of the parental immunity doctrine in this instance violate "law of the case." This is a non-
binding discretionary rule intended to avoid re-litigation before the same court of the same issue in the same
controversy." Monaco v. Hartz Mt. Corp., 178 N.J. 401, 413 (2004)); see also Pressler, Current N.J. Court Rules,
comment 4 on R. 1:36-3 (2008). Generally speaking "[a] court of equal jurisdiction ha[s] no right to 'reconsider' [a
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legal issue] in the absence of substantially different evidence at a subsequent trial, new controlling authority, or
specific findings regarding why the judgment was clearly erroneous." Monaco, supra, 178 N.J. 413 (citing
Underwood v. Atl. City Racing Ass'n., 295 N.J. Super. 335, 340 (App. Div. 1996), certif. denied, 149 N.J. 140 (1997)). As
to the latter, "the law of the case doctrine does not obligate a judge to slavishly follow an erroneous or uncertain
interlocutory ruling." Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 356 (App. Div. 2004). Ultimately,
"the . . . doctrine is not implicated . . . by a judge's reconsideration of a prior interlocutory order." Pressler, Current
N.J. Court Rules, comment 4 on R. 1:36-3 (2008).
Here, the motion judge, in holding defendant to a general negligence standard, stated simply:
I'm denying the motion as to the mother because a jury should decide as to whether or
not she was negligent in watching the children . . . [s]o the test is really not willful or
wanton. The test is was she negligent in supervising these children. Parental immunity
does not apply because it was not her child . . . that was injured.
This pretrial ruling is contrary to Buono and, for reasons already stated, clearly erroneous. As such, the trial
judge owed no special deference to the motion judge's interim ruling and the law of the case principle, which is
discretionary in any event, simply does not apply.
Affirmed.
In fact, Caitlin's mother, plaintiff Sharon Kane, had coached Caitlin's tee ball team that previous Spring season. As
coach, she instructed the children on the safety procedures to be used when playing the game, specifically, to pay
attention to their surroundings, stay out of the batting area, always watch the batter and the ball, wear a helmet,
and survey the batting area before swinging the bat. According to Sharon, whenever there was somebody at bat,
several coaches would make sure the rest of the children were in the dugout so nobody got hurt, while one coach
would stand near the batter to prevent other children from getting too close.
Previously, at trial, plaintiffs conceded the lack of proof of negligence on Eddie's part, in light of the rebuttable
presumption that a child under the age of seven is not capable of negligence. See Bush v. N.J. & N.Y. Transit Co., 30
N.J. 345, 358 (1959). This issue and the premises liability issue have not been raised on appeal.
This view, of course, is not without its critics. In Buono, a vigorous three-justice dissent strongly resisted the use of
parental immunity to bar claims by third-party victims, reasoning that the rights of innocent victims to be made
whole outweighed any fear of increased litigation and that the doctrine's extension to third-party claims went
against the national trend. 179 N.J. at 148-49 (Long, J., dissenting).
It is also noteworthy that the motion judge, in the same order, denied defendant's summary judgment motion as to
the minor child Eddie who was five years old at the time of the incident. The judge stated "I think under the law . . . a
child under seven cannot be comparatively negligent, but they can be negligent." This ruling was also clearly
erroneous because there is a rebuttable presumption that a child under the age of seven is not capable of
negligence. See Bush, supra, 30 N.J. at 358. This issue was not raised on appeal as plaintiffs conceded same at trial.
(continued)
(continued)
13
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