Howard Cited by New Jersey Supreme Court Judgment helps restore common sense to American law
March 29, 2004 CG Chair Philip K. Howard was cited in a recent decision of the New Jersey State
Supreme Court, in a case about a bicycle accident involving two toddlers. Buono v. Scalia (179 N.J. 131; 843 A.2d 1120; 2004 N.J. Lexis 154)
Citing Howard's October 2003 Wall Street Journal op-ed, When Judges Won't Judge, the court said exposing parents to liability in this instance would help create "not a safer
world but one in which people simply [would] avoid socially useful activities."
The case arose when five-year-old Michael Scalia accidentally collided with sixteen-month-old
Kathryn Buono at a block party. Alphonse Scalia was following a few feet behind
his son and shouted to warn Michael about running into Kathryn, but Michael did
not hear the warning. Kathryn, whose mother was standing an "arm's length" away
and did not witness the accident, required stitches.
Kathryn's parents then sued Michael's parents for negligent supervision. A trial
court granted summary judgment to the Scalias, and the Supreme Court upheld that
decision under a New Jersey precedent that frees parents from liability in cases
involving "customary child care or supervision."
In op-eds and in recent testimony before the U.S. House Judiciary Committee, Common Good has been calling on judges
to draw the line on who can sue for what. Our annual Gatekeeper Awards were created to honor judges whose decisions restore public confidence that reasonable
actions will be supported by the courts, even when they result in unintended consequences.
In the Buono case, the court considered the question of when parents can be sued. Parents
are not protected from liability, the court emphasized, when "willful or wanton" conduct
is involved, or when the action leading to injury is unrelated to "highly subjective
factors involving a parent's philosophy of child care and supervision."
But:
There are certain areas of activities within the family sphere involving parental
discipline, care, and control that should and must remain free from judicial intrusion.
Parents should be free to determine how the physical, moral, emotional, and intellectual
growth of their children can best be promoted. That is both their duty and their
privilege.
In short, the court recognized that the point of law is not to let anyone sue
for anything, but to set reasonable boundaries for dispute, so that people know
where they stand:
[T]his dispute requires the Court to weigh competing questions, not least of
which is the question of how to allocate resources in a manner that fairly accommodates
the judiciary's diverse needs. ... [F]orcing these parties to defend against claims
and counterclaims would consume not only their own resources but society's as
well. We are not convinced ... that incurring such costs to adjudicate child-rearing
decisions by Michael's father or Kathryn's mother--decisions that were neither
willful nor reckless--reflects a proper balancing of interests.
The lower court in the same case also made a critical point about hindsight after
accidents:
[W]e can conceive of few accidental injuries a child might sustain that could
not have been prevented by closer supervision by his or her parents. Hindsight
invariably will expose some slight oversight, some failure to take yet another
precaution that somehow contributed to the child's mishap. No parent can do everything.
If such claims were allowed, it would be the rare parent who conceivably could
not be called to account in the courts for his or her conduct.
As Common Good's chair wrote in When Judges Won't Judge:
Lawsuits are easy. Whenever anything goes wrong, it's easy to come up with a
theory of what might have been done differently. There could have been a warning.
There could have been more supervision of the playground. The doctor could have
ordered an MRI for the headache, just to make sure. Exposing people to liability
against the standard of hindsight, however, creates not a safer world but one
in which people simply avoid socially useful activities. Obstetricians quit. Seesaws
disappear. Businesses stop giving references. The City of New York did, in fact,
cut the limbs off trees near playgrounds so children would not be tempted to climb
them.
All life's activities involve risk, and therefore the inevitability of accident
and disagreement. The role of law is not to provide a consolation forum for those
who have felt the misfortune of risk, but to support the freedom of all citizens
to make reasonable choices, including taking reasonable risks. That requires judges,
whenever someone makes a claim, to balance the seriousness of the risk against
the social utility of the claim.
Rutgers Law School maintains a database of New Jersey court decisions, which you may search for the opinions discussed here. The Rutgers database
will provide links for purchasing opinions from Lexis or Westlaw.
The Supreme Court decision is Buono v. Scalia, 179 N.J. 131; 843 A.2d 1120; 2004 N.J. Lexis 154.
The Superior Court decision is Buono v. Scalia, 358 N.J. Super. 210; 817 A.2d 400; 2003 N.J. Super. Lexis 86.
Also see Foldi v. Jeffries, 93 N.J. 533; 461 A.2d 1145 (1983). | 
