
    Walter L. Nolechek, Individually and as Administrator of the Estate of Scott W. Nolechek, Deceased, Respondent, v Thomas Gesuale et al., Appellants, et al., Defendants. Walter L. Nolechek, Third-Party Plaintiff-Appellant-Respondent, v Paul Neiman et al., Third-Party Defendants-Respondents.
    Argued October 26,1978;
    decided December 27,1978
    
      POINTS OF COUNSEL
    
      Joseph D. Ahearn, for appellants.
    I. In view of the incontrovertible proof that plaintiff Walter L. Nolechek purchased a motorcycle for his infant son who had one eye and whose vision at long distances could not be corrected and in view of the fact that plaintiff Walter L. Nolechek was fully cognizant of the fact his 16 VS-y ear-old son did not possess a driver’s license of any type, that the motor vehicle was unregistered, and that plaintiff had no facial protection while operating the motorcycle, the counterclaim asserted by defendants Thomas Gesuale and Star Sand and Gravel Company, Inc., against plaintiff Walter L. Nolechek is manifestly legally sufficient. The counterclaim is not based upon mere failure to supervise. The counterclaim is predicated upon the allegation that the father furnished a dangerous instrumentality to his physically handicapped infant son. (Holodook v Spencer, 36 NY2d 35; Lastowski v Norge Coin-O-Matic, 44 AD2d 127; Goedkoop v Ward Pavement Corp., 51 AD2d 542; Wheeler v Bello, 78 Misc 2d 540; Dole v Dow Chem. Co., 30 NY2d 143; Allstate Ins. Co. v Reliance Ins. Co., 85 Misc 2d 734; Pico v Canini, 47 AD2d 951; Rabadi v Miller, 47 AD2d 937.) II. In response to the argument made by the third-party defendants at the court below. (Stasky v Bernardon, 81 Misc 2d 1067; Seeberger v Le Gare, 48 AD2d 994; Lampman v Cairo Cent. School Dist., 81 Misc 2d 395; Kroupa v Southampton Hosp., 49 AD2d 926; Zambraski v Eller, 44 AD2d 691; Delaney v Philhern Realty Holding Corp., 280 NY 461; McFarlane v City of Niagara Falls, 247 NY 340; Clifford v Dam, 81 NY 52.)
    
      Charles F. Brady and Benjamin Purvin for appellant-respondent.
    The counterclaim fails to state a cause of action. (Lastowski v Norge Coin-O-Matic, 44 AD2d 127; Holodook v Spencer, 36 NY2d 35; Zambraski v Eller, 44 AD2d 691.)
    
      E. Richard Rimmels, Jr., for third-party defendants-respondents.
    I. The third-party complaint fails to state a cause of action. (Gelbman v Gelbman, 23 NY2d 434; Dole v Dow Chem. Co., 30 NY2d 143; Cotroneo v Sabatino, 50 AD2d 1081; Rice v Argento, 59 AD2d 1051; Lalomia v Bankers & Shippers Ins. Co., 35 AD2d 114, 31 NY2d 830.) II. The counterclaim fails to state a cause of action. (Corbett v Scott, 243 NY 66; Reiszel v Fontana, 35 AD2d 74; Smedley v Piazzolla, 59 AD2d 940; Goedkoop v Ward Pavement Corp., 51 AD2d 542; Holodook v Spencer, 36 NY2d 35; Seeberger v Le Gare, 48 AD2d 994; Kroupa v Southampton Hosp., 49 AD2d 926; Zambraski v Eller, 44 AD2d 691; Steinberg v Cauchois, 249 App Div 518; Pico v Canini, 47 AD2d 951.)
   OPINION OF THE COURT

Chief Judge Breitel.

Plaintiff Walter L. Nolechek, individually and as administrator of the estate of his son Scott, brought this action against defendants Gesuale, Star Sand and Gravel Co., Inc., and others for wrongful death resulting from the son’s motorcycle accident. A counterclaim by defendants Gesuale and Star alleges negligence by the plaintiff father in providing his son, blind in one eye and with impaired vision in another, with a motorcycle. Special Term denied a motion to dismiss the counterclaim. From the Appellate Division’s reversal and dismissal of the counterclaim, one Justice dissenting, defendants appeal. Plaintiff cross-appeals from the Appellate Division’s dismissal of a third-party complaint against James and Paul Neiman, his son’s companion and the companion’s father.

The primary issue is whether an alleged tort-feasor, who may be cast in damages for injuries suffered by an infant child, may seek indemnity or contribution from the injured child’s parent when the child’s injury, and the tort-feasor’s consequent tort liability, resulted from the parent’s negligent entrusting of a dangerous instrument to the child.

The order of the Appellate Division should be modified to reinstate the counterclaim. The third-party complaint should stand dismissed. A minor child has no cause of action against his parent for negligent supervision in general, or for negligently entrusting him with a dangerous instrument in particular. There is, however, a duty by a parent to protect third parties from harm resulting from an infant child’s improvident use of a dangerous instrument, at least, and perhaps especially, when the parent is aware of and capable of controlling its use (e.g., Lalomia v Bankers & Shippers Ins. Co., 35 AD2d 114, 117, affd on opn at App Div 31 NY2d 830; Carmona v Padilla, 4 AD2d 181, 183, affd 4 NY2d 767; see Restatement, Torts 2d, § 316; Prosser, Torts [4th ed], pp 872-873). Since defendants in this action stand to be harmed by the plaintiff father’s alleged breach of duty, namely, they may be cast in damages for the son’s death, the counterclaim against the father was improperly dismissed by the Appellate Division.

The complaint alleges that defendants Gesuale and Star, owners or lessees of property abutting Lawrence Road in Smithtown, were engaged in the business of mining sand and gravel. Lawrence Road was used by these defendants to transport the mined sand and gravel. Owners of adjacent properties, also named as defendants, had permitted on their property construction of concrete pillars supporting steel beams. From these beams, Gesuale and Star suspended a one-inch steel cable to close off the road. The cable, it is conceded, was in place "for a long time prior to” the date of the fatal accident.

On September 30, 1973, Scott Nolechek, 16 years old, and a friend, James Neiman, were riding motorcycles on Lawrence Road. Young Nolechek, as noted, was blind in one eye, had impaired vision in the other eye, and his long distance vision was uncorrectable. He did not possess, and had never applied for, an operator’s license of any type. Yet, his father had purchased a motorcycle for him. The motorcycle had not been registered, nor had it been inspected. Scott Nolechek, riding his friend’s motorcycle, for they had switched motorcycles just before the accident, was killed when he rode into the suspended steel cable.

The father brought this action against Gesuale and Star, against the property owners who had permitted construction of the concrete pillars, and against the town and its superintendent of highways. It was alleged that all parties were negligent in permitting a dangerous condition to exist without any warnings or safeguards. Defendants Gesuale and Star counterclaimed, alleging negligence by the father in providing his vision-impaired son with a motorcycle. Plaintiff responded by interposing a third-party complaint against James and Paul Neiman, his son’s companion and the companion’s father, alleging that due to the switch in motorcycles just before the accident, it was they who had provided young Nolechek with the motorcycle on which he was killed. The Neimans, third-party defendants, moved to dismiss both the counterclaim and the third-party complaint, and Special Term denied the motion. On appeal by the Neimans, the Appellate Division reversed and dismissed the counterclaim and the third-party complaint. From this order, defendants Gesuale and Star appeal. Plaintiff Nolechek also appeals, alleging error in dismissal of the third-party claim.

In Holodook v Spencer (36 NY2d 35, 51), it was held that an infant child has no cause of action against his parent for inadequate supervision. Defendants, arguing that a motorcycle is a "dangerous instrument” in the hands of a 16-year-old boy with impaired vision, would carve an exception to the Holodook rule. But deciding when to permit a minor to Use a "dangerous instrument”, whether it be a motorcycle, a bow and arrow, a knife, a hammer, or even a pencil, is as much an element of parental supervision as is the decision to monitor a child’s play activity more or less closely (compare id., pp 41-42; see, also, Seeberger v Le Gare, 48 AD2d 994, 995). The proposed "dangerous instrument” exception to the Holodook rule is, therefore, neither analytically persuasive nor practically sound.

The thrust of the holding in Holodook is that parents are in the best position to determine how much supervision is right for their children (see 36 NY2d, esp pp 49-51, supra). When children are young, the decisions may involve the extent to which they will be permitted to stray from the immediate physical presence of their parents; when children are older, the decisions are more varied. Children might, at various points in their development, be permitted, and properly so, to use bicycles, lawn mowers, power tools, motorcycles, or automobiles, all of which are, in some contingencies, "dangerous instruments”.

The guiding principles, however, remain the same: "The duty to supervise a child in his daily activities has as its objective the fostering of physical, emotional and intellectual development, and is one whose enforcement can depend only on love. Each child is different, as is each parent * * * For this reason parents have always had the right to determine how much independence, supervision and control a child should have, and to best judge the character and extent of development of their child” (Holodook v Spencer, 43 AD2d 129, 135 [Greenblott, J.], quoted at 36 NY2d 35, 50, supra). All the more, when a "dangerous instrument” or a sometimes dangerous instrument may be entrusted to a minor child is a significant discretionary decision in the proper exercise of this parental right.

Moreover, the practical consequences of permitting a child to recover on the "dangerous instrument” theory could be serious and unfortunate. One need only imagine young Nolechek riding his motorcycle on the family’s own property, and encountering a ditch or an obscured rock. It would be unjust to permit one of Nolechek’s parents, either individually or as administrator of the estate, to hold the other liable in a wrongful death action for entrusting the boy with a dangerous instrument. Recovery in such an instance might result in unwarranted benefit to both parents at the expense of their homeowner’s insurance carrier.

By contrast, it is well-established law that a parent owes a duty to third parties to shield them from an infant child’s improvident use of a dangerous instrument, at least, if not especially, when the parent is aware of and capable of controlling its use (see, e.g., Lalomia v Bankers & Shippers Ins. Co., 35 AD2d 114, 117, affd on opn at App Div 31 NY2d 830, supra; Carmona v Padilla, 4 AD2d 181, 183, affd 4 NY2d 767, supra; Lichtenthal v Gawoski, 44 AD2d 771, 772; Zuckerberg v Munzer, 277 App Div 1061; Agnesini v Olsen, 277 App Div 1006). This is not because parents are obliged to raise their children in any particular way; it is because however the children are raised, there must be respect for the hazards created for third parties. Parents are permitted to delegate to their children the decision to participate in dangerous activities, but they are not absolved from liability for harm incurred by third parties when the parents as adults unreasonably, with respect to such third parties, permit their children to use dangerous instruments.

To be sure, the harm to third parties in this case is not the direct, physical injury ordinarily caused by dangerous instruments. Instead, involved is financial harm resulting from potential liability of a "concurrent” tort-feasor for the child’s death while using the dangerous instrument. But this is harm nevertheless, and harm for which a parent should be responsible if permitting his child to use the dangerous instrument was indeed negligent. It matters not that the parent would not be liable to his child in an action for personal injuries; the financial harm suffered by the third party results from a legally cognizable breach of duty different in kind from any moral breach of duty to the child. The situation is analogous to the workmen’s compensation situation where a third-party tort-feasor may implead for contribution or indemnity the employer of an injured employee, despite the employee’s inability to recover from the employer directly (see, e.g., Dole v Dow Chem. Co., 30 NY2d 143, 152; but cf. Holodook v Spencer, 43 AD2d 129, 137, supra).

Emphasized must be the duty that creates the liability. Not involved is a parental duty to prevent children from injuring themselves by use of dangerous instruments. Such a legal duty has never been recognized in this State, and certainly this case offers no need to do so. Indeed, because the decision to permit a child to use such instruments is an element of parental supervision, such a duty was implicitly rejected in the Holodook case. Analytically separate, well established, and key to this case is the duty owed by parents to third parties to control their children’s use of dangerous instruments to avoid harm to third parties (Lichtenthal v Gawoski, 44 AD2d 771, 772, supra; cf. Holodook v Spencer, 36 NY2d 35, 45, supra).

Of course, it was established in the Holodook case that even third-party tort-feasors are not entitled to contribution from parents for liability resulting in part from negligent supervision of children (Holodook v Spencer, 36 NY2d 35, 51, supra). When dangerous instruments are involved, however, the considerations are different.

Negligent supervision of children, in general, creates no direct, unreasonable hazard to third parties. Absent injury to the child himself, and consequent tort liability of third parties, negligent supervision creates no substantial risk to third parties. Any duty to third parties would therefore, as noted in the Holodook opinion, be dependent on the nonexistent duty to the child.

When a parent has negligently permitted an infant child to use a dangerous instrument, however, there has been a breach of an established duty to third persons who may be harmed. That the harm may not, in a particular case, be a direct personal injury should not absolve the parent from liability. A dangerous instrument in the hands of an infant child may foreseeably cause various types of harm: personal injury, property damage, or, as in this case, exposure to tort liability. The parent’s duty, unlike the duty of adequate supervision not legally cognizable in tort, is not a duty owed the children. It is a duty to protect third parties from the foreseeable harm that results from the children’s improvident use of dangerous instruments, to the extent that such use is subject to parental control. It may not be concluded, as a matter of law, that the risk of a third party’s tort liability to an injured child is not a foreseeable risk to such third parties when a parent has negligently entrusted the child with a dangerous instrument. As has been said, now in classic terms, "It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye” (Munsey v Webb, 231 US 150, 156).

It might be argued that permitting a third-party tort-feasor to counterclaim against a parent will disrupt family harmony or dissuade parents from instituting action against the tortfeasor on the child’s behalf. This argument in its generality was rejected implicitly in Gelbman v Gelbman (23 NY2d 434, 438-439), where immunity for nonwillful torts between parent and infant child was abolished. If considerations of family harmony and vigorous prosecution of lawsuits by children were paramount, it would make no sense to permit infant children to sue their parents under any circumstances. But that is not how the law has developed.

Of course, in the particular contexts presented in the Holodook case, considerations of intrafamily relations were given greater prominence (see Holodook v Spencer, 36 NY2d 35, 46-49, supra). But that was because in the Holodook case, the duty suggested, explored, and rejected by the court was one running only from parent to child. Third-party rights were at issue only incidentally. By contrast, when dangerous instruments are involved with a third party’s conduct providing a concurrent condition or cause of the harm incurred, the duty is one running only from the parent to third parties. Intrafamilial considerations must therefore be subordinated, to some extent, to the other policy interests involved.

The sound rule of the Holodook case survives only if accompanied by sound exceptions. A parent who entrusts an infant child with a dangerous instrument creates a danger to all society. It would be repulsive to permit, under the guise of protecting intrafamily relations, such a parent to escape all liability to a "concurrent” tort-feasor who suffers financial harm as a consequence of the child’s inappropriate use of the dangerous instrument and resulting injury.

Moreover, even when it is most significant, the potential harm that could result from permitting counterclaims or third-party claims by tort-feasors against parents is somewhat speculative (cf. Holodook v Spencer, 36 NY2d 35, 52-53, supra [Jasen, J., dissenting]). (Finally, in this case, although obviously not decisive, since the infant child is already dead, no further strain on family relations could result from permitting assertion of the counterclaim.)

Although the counterclaim should be reinstated, the third-party claim by plaintiff against the Neimans should stand dismissed. The claim that the Neimans were negligent in providing young Nolechek with the motorcycle he was riding at the time of the fatal accident provides no basis for liability. There is no reason to believe that the decision of the two boys to exchange motorcycles temporarily made any more probable, or any less probable, the occurrence of the accident. Hence, the exchange was not a proximate cause of the accident.

The equities in this case are apparent. Young Nolechek’s father permitted his 16-year-old son, blind in one eye, to ride a motorcycle. It would be repulsive to permit the parent, to recover from a third party guilty of "concurrent” negligence for the death of his child while preventing the third party from counterclaiming for contribution against the parent. As demonstrated, the principles properly analyzed and applied do not permit such a result.

Accordingly, the order of the Appellate Division should be modified to reinstate the counterclaim, with costs to defendants-appellants against plaintiff-respondent Nolechek, and otherwise affirmed, with costs on the third-party claim to respondents Neiman against appellant Nolechek.

Gabrielli, J.

(concurring). While the majority has reached the correct result in this case, problems with its rationale compel me to concur separately. I do not agree with the holding that the counterclaim by Gesuale can be sustained in the absence of direct liability of the parent towards the child, but since I would hold that facts sufficient to support a direct claim by the child have been pleaded, I would sustain the counterclaim.

As pointed out by the dissent, third-party liability does not exist in the absence of a duty owed by the third-party defendant to the plaintiff (see, e.g., Barry v Niagara Frontier Tr. System, 35 NY2d 629; Rogers v Dorchester Assoc., 32 NY2d 553). In this case the well-established rule under Dole v Dow Chem. Co. (30 NY2d 143) precludes the counterclaim unless we also recognize the existence of a cause of action by the child against the parent. Since I would find no impediment to the direct child-parent suit in the instant case, and in a limited range of other situations, there is no problem with the counterclaim.

The majority correctly perceives that the decision to entrust a child with an allegedly dangerous instrument invariably involves parental discretion and could perhaps arguably be classified as negligent supervision. This should not, however, end our inquiry into the direct liability of the parent to the child (cf. Holodook v Spencer, 36 NY2d 35). Where the instrument given to the child is so obviously capable of causing harm to the child that the parental behavior can be classified as wanton, willful, or gross negligence, then the conduct has gone far beyond the bounds of ordinary parental discretion and should be actionable.

The type of conduct I refer to is distinguishable from the class of behavior termed "negligent supervision” which we refused to recognize as actionable in Holodook. Three cases were decided together in that opinion; Graney v Graney involved a parent supervising his child at the playground where the child fell from a slide; Ryan v Fahey involved a parent supervising her child in a neighbor’s yard where the child was injured by a lawn mower, and Holodook v Spencer involved a parent supervising a child who darted between parked cars into the street where he was struck by an automobile. No allegation was or reasonably could have been made that the parental conduct constituted gross negligence, rather each accident occurred during the course of normal, albeit arguably negligent, parental supervision. We discussed the weighty policy considerations against imposing liability on the negligent parent, and based our decision in each case to deny the children involved any recovery on the importance of those considerations.

These policy arguments are much less compelling when the act complained of is more egregious than mere negligent supervision. In fact, in Holodook we were most concerned with the problems inherent in judicial determinations establishing a standard of what is good parental care. This does not present a problem when the act complained of is grossly negligent, for then the standard of care may readily be defined without infringing on the vast domain best left to parental discretion. Careful jury instructions will ensure that recovery is permitted only in egregious cases, while at the same time there is no unnecessary interference with the family unit.

To refuse to recognize certain conduct as tortious is to declare that no matter how heinous the parental behavior we will not compensate the child. To cloak this result in the term "parental discretion” will not strengthen the familial bonds at least insofar as the victim is concerned. We should not shirk the duty to establish a minimal standard of care below which no one should be permitted to fall.

This is not to say that intrafamilial suits should bé allowed for all conduct that would be actionable if it were between nonrelated persons. Only when the fact finder finds wanton, willful, or gross negligence should recovery be allowed. If a reasonable parent who is aware of the mental and physical characteristics of the child and all the surrounding circumstances would be shocked that any parent would perform the act or omission complained of, the injured child should be compensated. Any act which is less egregious is best described as a breach of the duty " 'whose enforcement can depend only on love’ ” (majority opn, p 338), and we should not interfere.

The facts alleged in this case are sufficient to state a claim. The pleadings, taken together, state the severe vision impairments suffered by the child and the action of his father in providing him with a motorcycle. Testimony at trial could conceivably prove gross negligence. Important of course would be the quality of the child’s vision, his ability to ride a motorcycle, the instruction given to him before riding, the restrictions placed on his activities, and any other evidence that might show gross negligence by the parent. Although this case may be difficult to prove, I cannot say as a matter of law at this stage of the litigation involving only the pleadings that it would be impossible to establish gross negligence.

Any other result would be inequitable. Insofar as direct suits by the child against the parent are concerned, to deny the child the right to sue means that regardless of how egregious the conduct, the child must suffer his injuries uncompensated. Let us assume a parent decides that a loaded revolver is a suitable toy for his five year old, or that it is safe for a two year old to swim unattended and the child is injured, fatally or otherwise. The majority would hold that any claim resulting therefrom would be beyond the scope of a negligence action, thereby denying the child a right which any other injured person possesses to seek compensation for a wrong.

Moreover, it would be unjust to deny a third-party claim or counterclaim against the parents by a party whose negligence is only an insignificant contributing cause of the injury. That third party may have only been a minor cause of the damage, and under Dole apportionment principles he would be entitled to seek contribution from the parent. This he cannot do if there is no direct liability from the parent to the child. The result is a penalty against a marginally negligent tort-feasor while the parent is not responsible for any of the loss. In fact, in situations such as the instant case, the parent may even receive substantial economic gains as a result of the law suit.

These unfortunate results would not apply were we to recognize the counterclaim in the instant suit. At the same time, the result remains consistent with Dole v Dow Chem. Co. (30 NY2d 143, supra) and the cases which follow it, by only recognizing the counterclaim where it is reasonably foreseeable that the parent’s gross negligence will be actionable by the injured child.

Accordingly, I vote to reverse and reinstate the counterclaim by defendants against Walter L. Nolechek.

Fuchsberg, J.

(concurring). My concurrence here is in result only.

In Gelbman v Gelbman (23 NY2d 434), building on Judge Fuld’s memorable dissent in Badigian v Badigian (9 NY2d 472), this court unqualifiedly and unanimously revoked a rule of this State which theretofore had prohibited child-parent suits for nonwillful torts. The historical, social and legal exigeses that supported those opinions were too clearly stated then to require repetition here. Yet, though nothing had occurred in the interim to substantiate the alarums of those who decried Gelbman, only seven years later, in Holodook v Spencer (36 NY2d 35), a divided court cut back on that holding when it decided to restore the immunity doctrine it had previously discarded for cases in which the tort committed by a parent against his child occurs in a factual framework that can be associated with parental supervision. And, though every one of our sister States that have considered the problem has rejected the Holodook rule (e.g., Gibson v Gibson, 3 Cal 3d 914; Goller v White, 20 Wis 2d 402; Silesky v Kelman, 281 Minn 431), though the critical analysis in Judge Jasen’s dissenting opinion in Holodook is supported by eminent scholarly authority (see McCurdy, Torts Between Persons in Domestic Relation, 43 Harv L Rev 1030, 1078-1080; Thuillez, Parental Nonsupervision: The Tort that Never Was, 40 Albany L Rev 336; Casenote, 42 Brooklyn L Rev 125; Note, 47 U Col L Rev 795), and though the majority of the court today seeks some escape from Holodook’s strictures, I find it regrettable that the court should tinker with rather than toss out the so-called negligent supervision exception.

Thus, to meet the need for a just result, one of my colleagues, despite Holodook, would carve out a further complicating subexception for parental behavior which, though supervisory in nature, could be characterized as wanton or gross negligence. Another member of the court, seeking a like objective, would, I respectfully suggest, stretch the principles of foreseeability and proximate cause beyond all recognition by placing on the parent here the responsibility not only to anticipate that an unknown party may suffer damage as a consequence of the parental negligence in entrusting a child handicapped by severely impaired vision with the operation of a motorcycle, a reasonably anticipatable result, but also to foresee that the unknown party in some unknown manner will have contributed to the accident by concurrent negligence on its part, a completely speculative and remote contingency for which no statistical or other basis exists, and, even beyond that, that the unknown party will be subjected to suit and will seek contribution from the erring parent (see Ventricelli v Kinney System Rent A Car, 45 NY2d 950; see, also, Sheehan v City of New York, 40 NY2d 496; Prosser, Torts [4th ed], § 43, pp 267-270).

Instead of either of these solutions to the dilemmas Holodook has created, I would return to the simple and fundamental principles enunciated in Gelbman and in the Badigian and Holodook dissents, which in effect would permit each parent-child case to be decided by answering the broad question at the heart of negligence law: What would an ordinarily reasonable and prudent person — taking into account the parent-child relationship — have done in similar circumstances? (Cf. Gibson v Gibson, 3 Cal 3d 914, 921-922.) In doing so, I do not ignore the values inherent in stare decisis, but regard this as an appropriate instance for the application of the balancing principle of which Mr. Justice Frankfurter spoke when he pointed out that "stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience” (emphasis mine) (Helvering v Hallock, 309 US 106, 119, quoted in People v Hobson, 39 NY2d 479, 487).

A standard of "reasonable care under the circumstances”, well understood in tort law and only recently reaffirmed by this court in a conceptually related context (see Quinlan v Cecchini, 41 NY2d 686; Basso v Miller, 40 NY2d 233, 241; Scurti v City of of New York, 40 NY2d 433, 437), would not require that a parent live up to some idealized picture of a model father or mother. A mere misjudgment in supervising one’s child would not necessarily constitute a tortious breach of duty. In determining whether the bounds of reasonable behavior have been transgressed, all of the relevant facts and circumstances would have to be considered. In a supervision situation, among the foremost are bound to be the existence of the relation of parent and child; the practical responsibilities, expectations and limitations that flow therefrom; and the judgmental nature of the decisions a parent must make in functioning in that capacity.

Without developing this point in extenso, the weight which a court or jury will ascribe to each of these and other related factors will depend on the facts peculiar to the particular case. For example, aside from the facts relating to the negligence itself, such variable matters as the age, mental and physical health, intelligence, aptitudes and needs of the child involved; the presence in the family of other children competing for parental time and attention; and the economic social and physical environment in which the parental conduct occurs, all may be expected to play a part.

It is hard to see why such a tailoring of the results of each case to its facts is not to be preferred to the erection of rigid classifications, be they catalogued as "trespasser”, "licensee” or "business visitor” (see Basso and Scurti, supra), as "grossly” or "ordinarily” negligent or as "supervising parent”. Looking to the entire picture, rather than merely the labels, is the surer path to a just result.

Cooke, J.

(dissenting). This court today concludes that one who is not a joint or concurrent tort-feasor may nonetheless be held liable for contribution under Dole v Dow Chem. Co. (30 NY2d 143). Because such a holding marks a sudden, unexplained departure from prior well-reasoned decisions, I must dissent.

At the outset, I note my agreement with the majority insofar as it refuses to create a cause of action in favor of the decedent against his parent. Surely, in the usual case, a father’s decision to give a particular article to his child, involving an assessment of the child’s unique capabilities, maturity and judgment, falls well within the realm of parental supervision. As such, the parent’s conduct is not actionable by the infant (Holodook v Spencer, 36 NY2d 35).

But, having found that the infant does not possess a cause of action against his father, I cannot subscribe to the view that the father may somehow be liable in contribution to a defendant tort-feasor. True, the landmark decision in Dole "permits apportionment of damages among joint or concurrent tort-feasors regardless of the degree or nature of the concurring fault” (Kelly v Long Is. Light. Co., 31 NY2d 25, 29). Thus, "two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them” (emphasis added) (CPLR 1401). If the person from whom contribution is sought owes no duty to the injured plaintiff, however, he simply is not a joint or concurrent tort-feasor. In such a case, no apportionment may be granted (Prosser, Torts [4th ed], § 50, p 309; cf. De Witt Props. v City of New York, 44 NY2d 417, 427).

This principle is inherent in the doctrine of contribution, and our cases have consistently so held. In Barry v Niagara Frontier Tr. System (35 NY2d 629), we refused to allow a contribution cause of action where the third-party defendant breached no duty to the injured plaintiff: "Since it is conceded that no prior notice of the dangerous condition was given to the village, no cause of action accrued against the village. To say that a third-party apportionment action may be brought against the village would permit indirectly what could not be done directly by the plaintiffs themselves” (id., at p 633). Directly relevant, too, is Holodook v Spencer (36 NY2d 35, supra), which held that a parent who negligently supervises his child may not be cast in damages, either in a direct tort action or by way of a Dole claim. The basis of this decision was clearly articulated: "Because the secondary right to contribution in these cases is dependent upon the parent’s alleged failure to perform a duty owing to the plaintiff child, the absence of the primary cause of action defeats” the contribution actions (id., at p 51). Perhaps the clearest statement of the rule, however, is contained in Rogers v Dorchester Assoc. (32 NY2d 553, 564 [Breitel, J.]): "The rule of apportionment applies when two or more tort-feasors have shared, albeit in various degrees, in the responsibility by their conduct or omissions in causing an accident, in violation of the duties they respectively owed to the injured person” (emphasis added).

Nor do the workers’ compensation situations relied upon by the majority represent a departure from this established rule. To be sure, a joint tort-feasor may obtain contribution from an employer, even though the employee plaintiff could not sue the employer directly. The bar to a direct action in those cases, however, lies not in the absence of a duty owing from the employer to the employee, but rather in the existence of a statutorily created exclusive remedy (Workers’ Compensation Law, § 11). Simply stated, the employer owes a duty of care to his employee, and when he breaches that duty he subjects himself to liability for contribution (Briscoe v Williams, 50 AD2d 883). That the injured party pursues his remedy for this breach in an administrative rather than judicial forum is irrelevant to the question of contribution.

Thus, to hold Walter Nolechek liable in contribution to a third-party tort-feasor, despite the absence of any duty owing from Walter to the injured plaintiff, is to ignore the theoretical underpinnings of the contribution concept. In an attempt to reach what might appear superficially to be a Solomon-like result, the majority has displaced case law which establishes a sound, and logically necessary, principle.

Seizing upon the claim that the parent owes a duty to defendants Gesuale and Star, the majority opinion concludes that this duty may serve as the predicate for a contribution action. As demonstrated above, however, no apportionment may be had absent a breach of duty owing to the injured infant. In this respect, therefore, the majority seems to be creating a new tort cause of action which defendants may assert directly against Walter Nolechek. The problem with this, of course, is that Gesuale and Star have not suffered any injury recognized by tort law. Indeed, the father’s breach of duty, if a duty there is, at most subjects Gesuale and Star to the potential of being cast in judgment for damages. It need hardly be said that an action to recover such damages has never been cognizable in our legal system, and runs contrary to the settled principle that a negligent breach of duty does not give rise to liability unless it proximately causes injury (e.g., Prosser, Torts [4th ed], §§ 30, 41-44). Under any analysis, then, the defendants may not recover damages from Walter Nolechek.

On a policy level, moreover, today’s decision may bring untoward consequences to both parents and children. As to minor children, "the net effect of allowing Dole apportionment could well be the parent’s failure to seek legal redress on the child’s behalf against third parties who are more likely than the parent in these cases to have appropriate liability coverage. This is an effect obviously detrimental to the injured child” (Holodook v Spencer, 36 NY2d 35, 46, supra). Thus, where the child is injured but not killed, the spectre of liability might well deter the parents from instituting a lawsuit on behalf of their child. Even if it does not, the interests of the parent and the child will be in direct conflict, since a portion of the child’s recovery will come from the family coffer. We should not abide such an occurrence.

More disturbing, however, is the particular context in which the majority has decided to carve out an exception to the Dole and Holodook principles. It is apparently because the infant was partially blind that the motorcycle became a "dangerous instrumentality” in his hands. A child’s handicap, rather than excusing certain shortcomings, today is being used as the predicate for heretofor unrecognized liability. As has been noted in this regard: "The parent of a blind or crippled or retarded child has burdens enough without being singled out for a special additional monetary liability which the parents blessed with normal children would not confront. * * * A rule which would carve out a special exception for the parent already stricken with the burden of a seriously handicapped child, not to ease that parent’s path but to place yet another obstacle on it, lacks compassion” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3019, p 253). If settled law is to be abruptly reversed, it should not be done where only tort-feasors or insurers can benefit, at the expense of a parent of a handicapped, and now deceased, young boy.

For the reasons stated, the order of the Appellate Division should be affirmed.

Judges Jasen, Jones and Wachtler concur with Chief Judge Breitel; Judges Gabrielli and Fuchsberg concur in result in separate concurring opinions; Judge Cooke dissents and votes to affirm in another opinion.

Order modified, with costs to defendants-appellants against plaintiff-respondent Nolechek, in accordance with the opinion herein and, as so modified, affirmed, with costs on the third-party claim to respondents Neiman against appellant Nolechek. Question certified answered in the negative. 
      
       (See Badigian, 9 NY2d, at pp 476-81; Gelbman, 23 NY2d, at pp 437-439; for an excellent discussion of these concerns see Note, 47 U Col L Rev 795.)
     