Document Type

Article

Publication Date

3-3-1988

Abstract

In August and early September of 1982, Allan and Fran Bader and their three children, all United States citizens residing in New York, visited Robert and Beverly Purdom and their two children, Canadian citizens, at the Purdoms' farm in Ontario, Canada. According to the Purdoms, the Bader children, especially four-year old Debra, were overly attentive to the Purdoms' dog, Happy. The Purdoms assert that after observing the Baders' constant attention to Happy, Mrs. Purdom warned the Bader family to leave the dog alone and 39*39 instructed them not to let the dog into the house during mealtimes.

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

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

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

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

Comments

841 F.2d 38 (1988)

Debra BADER, an infant by her father and natural guardian, Allan BADER, and Allan Bader, Plaintiffs, v. Robert PURDOM and Beverly Purdom, Defendants-Third-Party Plaintiffs-Appellants, v. Allan BADER and Fran Bader, Third-Party Defendants-Appellees.

No. 190, Docket 87-7331.

United States Court of Appeals, Second Circuit.

Argued November 6, 1987.

Decided March 3, 1988.

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