Opinion
No. 02-0562174
August 13, 2003
MEMORANDUM OF DECISION ON MOTION TO STRIKE COUNT TWO OF APPORTIONMENT COMPLAINT
The plaintiff Rae Ann Groves (Rae Ann) has brought this action through her parent Kim Groves. The defendant is Chris Ficken and the complaint alleges he was negligent in thrusting a tree branch in Rae Ann's direction which caused her to come into the path of a go cart which struck her and caused injury.
Ficken has filed a two-count apportionment complaint. In Count One of the apportionment complaint, Ficken alleges that Taryn Groves, Rae Ann's sister, was negligently driving the go cart and there should be an apportionment of liability.
Count Two of the apportionment complaint seeks to apportion liability with the apportionment defendants Kim Groves and William Groves due to their allegedly negligent supervision of Taryn Groves while she was operating the go cart, a dangerous instrumentality.
Kim Groves, the apportionment defendant in Count Two, has filed this motion to strike Count Two of the apportionment complaint on the basis that it is barred by the doctrine of parental immunity.
In other words, § 52-572h (c) of the General Statutes governs apportionment of liability among tortfeasors. That subsection says:
(c) . . . [I]f the damages are determined to be proximately caused by the negligence of more than one party each party against whom recovery is allowed shall be liable to the claimant only for his (sic) proportionate share of the recoverable economic damages and the recoverable noneconomic damages."
The apportionment plaintiff, Ficken, argues the statute explicitly provides for apportionment among those tortfeasors from whom plaintiff is entitled to recover damages. Because of the doctrine of parental immunity, the plaintiff here could not recover damages from her parents.
The court will first make some general observations about this doctrine. Basically, this doctrine bars an unemancipated child from suing his or her parents for personal injuries. Our state first adopted this 1895 creation of the Mississippi Supreme Court in Mesite v. Kirchenstein, 109 Conn. 77, 82 et seq. (1929). Two basic rationales have been given for the doctrine. In Dubay v. Irish, 207 Conn. 518, 527 (1988), the court said: "The supervision, care and instruction of one's child involves issues of parental control, authority and discretion that are uniquely matters of a very personal type . . . Allowing a cause of action for negligent supervision would enable others, ignorant of a case's peculiar familial distinctions and bereft of any standards, to second guess a parent's management of family affairs . . ." Recent cases have reemphasized a rationale for the doctrine originally set forth in Mesite, saying that "[t]he primary rationale, however, and the one that this court has relied upon is the preservation of family harmony and the protection of the parent-child relationship," Ascuitto v. Farricelli, 244 Conn. 692, 697 (1998). The court quoted Mesite in saying, "Anything which undermines [parental] authority, brings discord into the family, weakens its government and disturbs its peace, is an injury to society and the state. Few things could bring about this unhappy condition more quickly or widen the breach between parent and child further than the bringing of an action at law for personal injuries by a minor child against the parent," id. p. 698.
Given the purposes of the doctrine, it also follows that it precludes a defendant from asserting a statutory claim for apportionment against the parent. As the court said in Crotta v. Home Depot, Inc., 249 Conn. 634 (1999), "Third-party actions against a parent based on that parent's negligent supervision of his (or her) child would be no less disruptive of parental management of family affairs than would be a direct negligence action by the child against the parent . . . Permitting such actions would `undermine parental authority,'" id. p. 644. The court also set forth the statutory basis for its conclusion. It noted that § 52-572h (c) explicitly provides for apportionment among those parties from whom the plaintiff is entitled to recover damages and under the parental immunity doctrine the minor child would be precluded from asserting a claim against her parents where the doctrine is applicable, id., 249 Conn. at. p. 369.
Before discussing the basis of the apportionment plaintiff's (Ficken) objection to the motion to strike it would also be worthwhile to indicate the various judicial and legislative limitations on its application. CT Page 9745 Squeglia v. Squeglia, 234 Conn. 259, 265 (1995), and Henderson v. Wooley, 230 Conn. 472, 486 (1986), list the exceptions, which are:
(1) An unemancipated minor can sue the employer of a parent whose negligence in the course of employment injured the child, thus putting the parent at risk of an indemnity suit.
(2) The negligent conduct of the parent at a business enterprise located outside the home (common law limitation), Dzenutis v. Dzenutis, 200 Conn. 290 (1986).
In Squeglia, the court noted that the doctrine "has never been limited to actions of negligence," 234 Conn. at p. 265. Court cited Begley v. Kohn Madden Printing Ink Co., 157 Conn. 445, 449 (1969); some states do not apply doctrine in cases of wilful or wanton misconduct. Foldi v. Jeffries, 461 A.2d 1145 (NJ., 1983) (excellent discussion of the doctrine); Baughn v. Honda Motors Co., Ltd., 712 P.2d 293 (Wash., 1986). Also see 59 Am.Jur.2d, "Parent and Child," § 120, p. 279.
(3) The negligent operation of a motor vehicle, aircraft or vessel (as defined in § 15-127 C.G.S.A.) (statutory limitation under § 52-572c).
(4) Sexual abuse, sexual assault or sexual exploitation by parent. (Common law limitation), Henderson v. Wooley, 230 Conn. 472 (1994).
What might be considered another exception to the doctrine is the so-called "public duty" exception, referred to generally in an extensive article on the doctrine at 6 ALR 4th 1066, § 8, pp. 1101, et seq. The ALR article is entitled "Parents' Liability — Injury to Child."
The business enterprise exception recognized in Dzenutis and the sexual assault exception referred to in Henderson seem to be, as those courts indicate at least in part, subsets of this generally recognized public duty exception. Thus, Dzenutis, after discussing the relevance of the availability of insurance to the issue before it said: "Another consideration has been the incongruity of denying recovery because of a familiar relationship between the victim and the tortfeasor for injuries caused by the breach of a duty owed to the general public upon which the relationship has no bearing." 200 Conn. 297. In Henderson, the court said, "Furthermore, there is a point at which parental conduct properly becomes a matter of public concern, and sexual abuse, assault and exploitation are well within that realm. When a parent perpetrates such a crime upon his or her child, that act constitutes a breach of duty owed not only to the child, but to the public at large, and there is no reason to immunize such conduct from a civil action in damages merely because of the familial relationship." 230 Conn. 482-83. Also, Dzenutis cited an Illinois case, Cummings v. Jackson, 372 N.E.2d 1127 (Ill., 1978), to support its position which is referred to in fact in the ALR Article as an example of a case where "the doctrine of parental tort immunity was not (held) applicable where the parent's negligence which caused or resulted in the child's injuries, involved a breach of duty owed primarily to the general public and only incidentally to the child." See § 8 at 6 ALR 4th pp. 1102-03 (and 2001 Supplement) referring to cases of this type.
Also cases discussing the statutory or common-law exception to the doctrine in motor vehicle cases justify the position taken on the basis of the fact that the duty of not driving negligently is one not so much inherent in the parent-child relationship, but one owed to the general public, Cates v. Cates, 619 N.E.2d 715, 729 (Ill., 1993), of. Ledwell v. Berry, 249 S.E.2d 862, 864 (N.C., 1978).
Turning to the facts of this case, and in light of the foregoing discussion, what are the various objections that the apportionment plaintiff (Ficken) raises to the apportionment defendants' (parents of Rae Ann Grove) motion to strike? The court will attempt to discuss each of the three objections to the application of the parental immunity doctrine.
(1)
The apportionment plaintiff (Ficken) argues that the motion should not be wanted because in our state, although a parent cannot be held liable for a child's torts at common law, this is not the case if "the parent either makes a dangerous instrumentality available to the child which the child is incapable of handling or the parent fails to control a child's known dangerous propensities." LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256 (1970), is cited; also see Kaminski v. Fairfield, 216 Conn. 29, 34 (1990). The objection rests on an argument that since it is alleged that the parents of the child Taryn Groves entrusted a dangerous instrumentality to her and/or knew her dangerous propensities with regard to the handling of this go cart, the parents cannot rely on the doctrine of parental immunity. The apportionment defendant parents argue that the apportionment plaintiff Ficken confuses the question of parental immunity with parental liability. To the court, however, this argument appears to miss the policy purposes behind the parental immunity doctrine.
New York is the only jurisdiction that appears to agree with the apportionment plaintiff's position. New York's case law in this area is somewhat confusing. On the one hand, the court of appeals has said that the defense of intrafamily immunity for torts was abolished, Gelbman v. Gelbman, 297 N.Y.S.2d 529 (1969); on the other hand, that case has been interpreted as not barring a suit by a child against a parent for injuries caused by "negligent supervision," Holodook v. Spencer, 364 N.Y.S.2d 859 (1994). And although a parent cannot be held liable to a child for injuries caused by the entrustment of a dangerous instrumentality to the child, Rios v. Smith, 722 N.Y.S.2d 220 (2001), and although a parent cannot be held secondarily liable for contribution to third parties for damages resulting from negligent supervision, for some reason the parent "may, however, be liable to a third party for negligent entrusting" a dangerous instrument to his or her infant child, thereby breaching a duty owed to the third person to control the child's use of dangerous instruments to avoid harm to such third party," Keohan v. DiPaola, 97 App.Div.2d 596, 597 (1983); St. Pierre v. Water-Vliet, 485 N.Y.S.2d 685 (1985). New York appears to be taking a halfway stop on the way to adopting a trend noted in Modern Tort Law, Lee Lindahl Vol. 1, § 18.04, p. 638, where it is said that a "growing minority of jurisdictions provide that the immunity is only a bar to intrafamily claims and does not bar third party claims for contribution or indemnity," Quest v. Joseph, 392 So.2d 256, 257 (Fla.App., 1981). But as a trial court, after Crotta, this court does not have the luxury of taking the latter route and cannot accept logic of New York's singling out "dangerous instrumentality" cases for special treatment on third-party claims.
It may be true that the third-party considerations invite an application of the public duty exception to the parental immunity doctrine and the court will discuss that later in the opinion. But that is a separate question and cannot be answered by, for example, labeling a particular mechanism of injury as a "dangerous instrumentality" and thereby ipso facto concluding the doctrine does not apply.
The point is that no matter the mechanism of the injury, by means of a dangerous instrument improperly entrusted to a child or by any other type of negligent supervision of a child which results in injury, allowing a third-party claim here would encourage the same family disharmony and lead to the same questioning of parental authority that led our courts to adopt the doctrine. Of course, there is a dangerous instrumentality exception to the common-law rule barring tort actions against parents, but what does that proposition have to do with addressing the applicability of the parental immunity doctrine in a factual context where, due to the familial relations of the injured child to the unsupervised child and parental control or lack thereof of the latter, the concerns addressed by the doctrine arise? Could it possibly be suggested that the injured child, Rae Ann, would have a cause of action against her parents because somehow the parental immunity doctrine does not apply to a situation where the parents merely entrusted a dangerous instrumentality to the sister who injured her with that instrumentality? If that cannot be argued, how can it be said that the doctrine cannot be raised in this apportionment context?
Usually the parental immunity doctrine is raised in the context of injury caused to a child by the negligent care and supervision of that particular child. Here, according to the apportionment complaint, the child was, at least in part, injured by the alleged failure of the parents to responsibly supervise her sister Taryn.
And the only inference that can be drawn from, the pleadings in this case, is that the mechanism of injury to Rae Ann Groves was the act of her sister Taryn driving the go cart into her. The claimed negligent supervision of Taryn necessarily is related to the claim that such alleged negligence by the parents of the sister Taryn caused injury to her sister, obviously an intra-familial context and a situation for which the doctrine was created to operate.
(2)
The second argument in opposition to the motion to strike, in effect, relies on an interpretation of two statutes. Section 52-572c reads as follows:
Sec. 52-572c. Parent-child immunity abrogated in certain negligence actions. In all actions for negligence in the operation of a motor vehicle, and in all actions accruing on or after October 1, 1979, for negligence in the operation of an aircraft or vessel, as defined in section 15-127, result in personal injury, wrongful death or injury to property, the immunity between parent and child in such negligence action brought by a parent against his child or by or on behalf of a child against his parent is abrogated.
If the "go-cart" can be defined as a "motor vehicle" under this statute, application of the doctrine of parental immunity is barred. Section 14-1 (47) of the General Statutes is then cited. That statutory subsection reads as follows:
"(47). "Motor vehicle" means any vehicle propelled or drawn by any nonmuscular power, except aircraft, motor boats, road rollers, baggage trucks used about railroad stations or other mass transit facilities, electric battery-operated wheel chairs when operated by physically handicapped persons at speeds not exceeding fifteen miles per hour, golf carts operated on highways solely for the purpose of crossing from one part of the golf course to another, golf cart type vehicles operated on roads or highways on the grounds of state institutions by state employees, agricultural tractors, farm implements, such vehicles as run only on rails or tracks, self-propelled snow plows, snow blowers and lawn mowers, when used for the purposes for which they were designed and operated at speeds not exceeding four miles per hour, whether or not the operator rides on or walks behind such equipment, bicycles with helper motors as defined in section 14-286, special mobile equipment as defined in subsection (1) of section 14-165 and any other vehicle not suitable for operation on a highway.
The apportionment plaintiff (Ficken) argues that "go-carts" are specifically not mentioned as an exception to the general definition of motor vehicles as are many other types of vehicles. Ficken argues the determination of whether a "go-cart" is a motor vehicle should be left to the jury, the apportionment "plaintiff should be entitled to conduct discovery and to hire an expert to determine whether or not the (go-cart) qualifies as a motor vehicle."
But "statutory interpretation is a question of law," Hibner v. Breuning, 78 Conn. App. 456, 458 (2003), and our court in Coolins v. Colonial Penn Ins. Co., 257 Conn. 718, 728 (2001), gave guidance as to how that interpretative function was to be exercised:
When we construe a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . Furthermore, [w]e presume that laws are enacted in view of existing relevant statutes . . . because the legislature is presumed to have created a consistent body of law . . .
The apportionment plaintiff makes assumptions which, as a matter of law, the court cannot agree with. First, he assumes that a "go-cart" is a "motor vehicle" under § 14-1 on its own terms, and secondly, he equates the use of the term "motor vehicle" in § 52-572c with the definition of "motor vehicle" in § 14-1.
Section 14-1 does define "motor vehicle" to mean "any vehicle propelled or drawn by any non-muscular power," then excepts from the definition various vehicles, explicitly not referring to "go-carts." But the statute also takes out of the definition of motor vehicle "any other vehicle not suitable for operation on a highway." By relying on the definition of "motor vehicle" in the statute and using the word "go-cart" in the apportionment complaint, it must be assumed, at least it cannot be denied by Ficken, that this go cart was "propelled . . . by nonmuscular power," i.e. a motor of some sort. In fact, one of the definitions of "go-cart" given in the Random House Dictionary is:
(4) A small, light, low-slung vehicle consisting of wheels, motor, steering device, and a frame with a seat, for racing or recreation, usually powered by a gasoline motor and capable of speeds up to sixty miles an hour."
Given a definition such as this and without further amplification in the apportionment complaint of what is meant by the term "go-cart" or even an allegation that the vehicle is suitable for operation on a highway and especially given the language of subparagraphs (a), (b), (f), (g) of paragraph 5 of the second count describing this "go-cart" as a "dangerous instrumentality," how can it possibly be said that this "go-cart" is anything other than a "vehicle not suitable for operation on a highway" and therefore not a "motor vehicle" as defined in § 14-1 of the General Statutes?
There is another factor that presents a confusing aspect to the foregoing analysis. Section 14-1 defines "motor vehicle" for the purposes of Chapter 246 of the General Statutes. Within that chapter is § 14-164a, "Motor Vehicle Racing," which regulates and controls such racing. At the end of that statute, it says: "The provisions of this section shall not apply to a motor vehicle with a motor of no more than three horsepower or a go-cart type vehicle with a motor of no more than twelve horsepower, when operated on a track of one-eighth of a mile or less in length." (Emphasis added.) The statute's language seems to set up a dichotomy between what are motor vehicles (although they only have up to three horsepower) and another class of objects which are "go-cart type vehicle(s)."
On the other hand, how can any vehicle with three horsepower or less be classified as a "motor vehicle" and thus suitable for driving upon a highway? One escape hatch is to refer to the introductory language of § 14-1, which says the following words shall be "construed as follows" (including "motor vehicle" in subsection 47) "unless another construction is clearly apparent from the language or context in which the term is used or unless the construction is inconsistent with the manifest intention of the General Assembly."
In light of the foregoing, the court then cannot conclude the bare-bones use of the word "go-cart" in the apportionment complaint allows it to be classified as "motor vehicle" for § 14-1 purposes and thus dictates that it be construed to be a "motor vehicle" as the term is used in § 52-572c abrogating the parental immunity doctrine when motor vehicles are involved.
But even if the court's analysis of § 14-1 is incorrect and a "go-cart," as the term is used in the pleadings or as amplified by some amendment to the apportionment complaint, can be said to be a motor vehicle for § 14-1 and Chapter 246 purposes, the court cannot accept the proposition that the definition of "motor vehicle" in § 14-1 (47) dictates or controls how that term is used in § 52-572c. For one thing, § 52-572c when it uses the term "motor vehicle" does not reference § 14-1 (47). When the statute talks about "negligence in the operation of . . . (a) vessel," it explicitly says of the word vessel — "as defined in section 15-127." The latter statute defines "vessel" so the legislature certainly knew how to cross reference statutes for the definition of words it used. Furthermore, the introductory language to § 14-1 makes clear that its definition of "terms" (including "motor vehicle" in subsection (47) means "terms used in this chapter" (i.e. Chapter 246). No universal definition of "motor vehicle" was intended wherever it appears in the General Statutes.
To import a broad definition of "motor vehicle" from § 14-1 or any other source into § 52-572c would distort the whole purpose of statutes like § 52-572 and the reason for their creation throughout the country. Many common-law cases and statutes have abrogated the parental immunity doctrine in actions arising out of automobile accidents. Two basic reasons are given. In a case like Ledwell v. Berry, 249 S.E.2d 862 (N.C., 1978), the court commented on a state statute making such an abrogation regarding automobiles and in upholding it said that the legislature should be free to attack "the evils brought about by accidents on the highways without addressing the whole field of negligence actions," id. p. 864. In Cates v. Cates, 619 N.E.2d 715, 729 (Ill., 1993), the court similarly abrogated application of the doctrine in car accident cases reasoning that operation of autos by parents is not inherent in the parent-child relationship since it does not involve parental decision making and discipline; also see Merrick v. Sutterlin, 619 P.2d 891, 893 (Wash., 1980); Jilani et al. v. Jilani, 767 SW.2d 671, 673 (Tex., 1988); Schneider v. Coe, 405 A.2d 682, 683 (Del., 1979). Another reason for abrogating the doctrine where automobile accidents are involved is the widespread existence of automobile liability coverage. Williams v. Williams, 369 A.2d 669, 672 (Del., 1976); Smith v. Kauffman, 183 S.E.2d 190, 194 (Va., 1971); Lee v. Corner, 224 S.E.2d 721, 724 (W.Va., 1976); Transamerica Ins. Co. v. Royal, 656 P.2d 800, 823 (Mont., 1983); cf. Sorenson v. Sorenson, 339 N.E.2d 907, 913 (Mass.).
All of the cases involving the motor vehicles negligence exception to the immunity doctrine are set forth in § 6, pp. 1093-96 of the 6 ALR 4th 1066 article. The court has read this subsection, including the supplement. Whenever the explicit word "automobile" or "car" was not used in the discussion of a case mentioned in the article but the generic word "vehicle" was used, the court has read those cases. All of the cases involved automobiles, that is, cars. Only one Illinois case made any departure from that approach, but it was not a great one. In that case, a child was injured due to the alleged negligent operation of a tractor by his father. The father was using the tractor to spray weeds on the side of the road; the child was injured as the father backed the tractor across the road. The court held the operation of a tractor was not inherent in the parent-child relationship and the parent "owed a duty not only to his son, but to the general public to drive the tractor in a careful manner," Paterson v. Lauchner, 690 N.E.2d 1048, 1051 (1998).
In other words, common-law decisions and statutes abrogating operation of the doctrine apply to situations where the child is injured by the negligent operation of a vehicle, i.e. an automobile, on the highway by a parent which directly involves the parent's obligation to the world at large to operate his/her vehicle safely on the highway and his/her possession of liability insurance. How can it be said, as it was said in Cates v. Cates, supra, where an automobile was involved, that parental supervision and decision making is not involved in the child's permission to use an actual use of a glorified toy like a go-cart.
Therefore, the court does not believe § 52-572c should be held to apply to this case because the word "motor vehicle" in that statute was meant to mean automobiles.
(3)
The apportionment plaintiff Ficken raises another objection to the motion to strike. As indicated in its preliminary discussion of the parental immunity doctrine, several exceptions to application of the concept have been based on a so-called "public duty" exception to the operation of the doctrine, see Jeudy v. Jeudy, 32 Conn.L.Rptr. 43 (2002). The argument of the apportionment plaintiff is straightforward:
In this case, the parents had a public duty to keep their daughter who was not properly trained to operate a motor vehicle on public streets. Specifically, this accident occurred on a public, not a private road. Thus, the operation of the motor vehicle on a public roadway presented a danger to the public at large. The plaintiffs were responsible to supervise their children and to prevent them from injuring members of the public since they knew or should have known that their daughter's propensity to drive negligently could cause harm.
For the court, this argument has been a very difficult one to address. The second count in paragraph 5f says that the parents "knew or should have known that permitting their child to operate a dangerous instrumentality on a busy street could and would have caused injury and that they knew or should have known of the necessity and opportunity for exercising control over their child." An earlier paragraph alleges the go cart Taryn was operating which hit her sister Rae Ann was a "dangerous instrumentality," i.e. a motor vehicle as defined by Connecticut General Statutes § 14-1 and the parents negligently permitted the child to operate the vehicle. It is also alleged that the parents negligently supervised the child when she was operating a dangerous instrumentality which she was not capable of handling this without reference to § 14-1 and "motor vehicle" as defined therein. Paragraph 5g alleges the parents knew of Taryn's dangerous propensities — "her propensity to speed, failure to keep a proper lookout and inability to control her vehicle when she was operating a dangerous instrumentality."
The court has already concluded that under the complaint's allegations, this "go cart" is not a "motor vehicle" for § 14-1 purposes, but giving the pleadings every favorable inference, there is an allegation that the "go cart" is a "dangerous instrumentality" in generic terms and no motion to revise was filed to amplify the definition. There is the further critical allegation (from the court's perspective) that the child Taryn was permitted to drive the "go cart" on a "busy street."
The difficulty presented, for the court at least, is that usually the "public duty" analysis arises in the context of the parent doing some act claimed to be negligent — driving a car, for example — and in jurisdictions where there has been common-law abrogation of the parental immunity doctrine in that setting, the courts, in permitting the injured child passenger to sue the parent one count has said.
. . . we conclude that the negligent operation of an automobile is not conduct inherent to the parent child relationship; such conduct does not represent a parent's decision making in discipline, supervising or caring for his (her) child . . . The duty which Cates (the father) owed in operating his vehicle on the highways was owed to the general public and not to Heather as his child. Cates v. Cates, 619 N.E.2d 715 (Ill, 1993).Cates is a leading case and its explanation of the rationale behind the public duty exception would apply to any alleged negligent conduct by the parent, whether an automobile was involved or not, cf. Cummings v. Jackson, 372 N.E.2d 1127 (Ill., 1978) (child on bicycle hit by car due to mother's failure to have trees trimmed; approaching drivers could not see child playing in front of house. Court abrogated immunity on basis of public duty analysis); Goedkoop v. Ward Pavement Corp., 51 App.Div.2d 542, 543 (N.Y., 1976) (child allowed to sue father who negligently kept blasting caps which blew up and injured child; father violated duty he owed public).
The difficulty for the court is presented by the fact that here the alleged negligent supervision of the child Taryn and her activities by the parents led in part at least to injury to the plaintiff sister. Parental supervision of children's play and recreation has in most instances been a basis for granting immunity from suit to a parent if injury results to the child as a result of the permitted play activities, cf. Haddrill v. Damon, 386 N.W.2d 643 (Mich.App., 1986) (child injured operating dirt bike which father failed to teach him how to use safely, father granted immunity); Pravato v. Pravato, 571 N.Y.S.2d 811 (App.Div., 1991) (child injured falling from pony that father had her ride at stable, father had immunity from suit); Sandoval v. Sandoval, 623 P.2d 800 (1981) (parental immunity where father did not latch gate to yard where child playing and child rode out of yard and was run over by car); but see Cole v. Sears, Roebuck Co., 177 N.W.2d 866 (Wis., 1970) (play activity not subject to Wisconsin's variation of parental immunity doctrine). It is unclear how these competing considerations should be balanced. But turning to the allegations in this case, and giving them every favorable inference, as is required in handling a motion to strike, Amodio v. Cunningham, 180 Conn. 80 (1980), when all is said and done, the apportionment complaint claims the child plaintiff was injured on a public street by her sister who was negligently permitted to operate that vehicle on the street. It is difficult to see how the public duty obligations of the parents would be any different in a case such as this, where, as a result of their negligence, another one of their children was injured as opposed to a neighbor child or any other user of the highway.
But the court should make clear what the ambit and intent of its ruling is. The court concludes that even if this "go cart" is found to be a "dangerous instrumentality," that, standing alone, would not allow the apportionment claim to stand. The claim is only viable on the basis that there is an allegation that this vehicle was permitted to operate on a public street. That factor allows the argument to be convincingly raised that the parents thereby violated a duty they owed to the public who would have occasion to use a public highway. The fact that the daughter was injured as opposed to any other member of the public is really of no relevance.
All of this, however, carries certain consequences. At trial, it would have to be shown that the parents knew or should have known the child was operating the go cart in the street and negligently permitted her to do so. Also, it is not clear from the language of the apportionment complaint whether the injured plaintiff was a "user" of the street or was pushed into the street. If the latter is true and it so turns out at trial, query whether the father's failure to comport with his duty to the public regarding his child's use of a go cart in a public street was, in fact, the proximate cause of any injury to the plaintiff child? cf., Sandbak v. Sandbak, 800 P.2d 8, 23 (Ariz.Ct.App., 1990), see Sandoval v. Sandoval, supra, where court reasoned cause of injury to child was not leaving gate to yard unlocked but automobile that hit child who left the yard on tricycle. Here, it could be argued if plaintiff pushed into street cause of injury was defendant's actions not parents' violation of any public duty.
In any event, the motion to strike is denied at this time, but the viability of the apportionment claim must, of course, be determined at trial.
Corradino, J.