Bigg v. Meadowgreen-Wildcat

• Court: District Court, D. New Hampshire
• Decided: April 21, 1997
• Docket: CV-97-19-SD
• Status: Published

Opinion

Bigg v. Meadowgreen-Wildcat CV-97-19-SD 04/21/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sharon C. Bigg, m/n/f Samuel J.P. Bigg; Sharon C. Bigg; Peter Bigg

v. Civil No. 97-19-SD

Meadowgreen-Wildcat Corp.

O R D E R

Before the court is the motion of the counterclaim

defendants, Sharon C. Bigg and Peter Bigg, which seeks to dismiss

the counterclaim of the defendant Meadowgreen-Wildcat

Corporation. Document 9. The defendant objects. Document 10.

1. Background

The counterclaim defendants have brought, as plaintiffs in

this court, an action against defendant which seeks to recover

money damages for injuries sustained by their minor son, Samuel

J.P. Bigg, together with recovery for medical expenses and other

damages allegedly incurred by them as a result of Samuel's

injuries.1 The thrust of their complaint is that Samuel fell

from a snow pile on defendant's premises, which was in a

dangerous condition, and that defendant was negligent in allowing

1The Biggs, residents of the United Kingdom, invoke the diversity jurisdiction of this court. 28 U.S.C. § 1322(a)(2). such condition to exist and in failing to warn the public

thereof.

By amended answer and counterclaim, defendant Meadowgreen-

Wildcat Corporation asserted that counterclaim defendants

breached a duty to supervise the conduct of Samuel and that such

breach of duty was causal of Samuel's injuries. Invoking the

statutory provisions for contribution among tortfeasors set forth

in New Hampshire Revised Statutes Annotated (RSA) 507:7-f (Supp.

1996) and for enforcement of such contribution, RSA 507:7-g,

defendant seeks to reguire contribution from the counterclaim

defendants concerning all or a portion of any liability imposed

on defendant.

2. Discussion

It appears that Mr. and Mrs. Bigg misconceived the thrust

and nature of the defendant's counterclaim. They cite to Towle

v. Kiman, 134 N.H. 263, 591 A.2d 911 (1991), a case wherein the

New Hampshire Supreme Court refused to adopt the tort of

negligent supervision by parents of an unemancipated minor in

circumstances where such minor had caused injuries to a third

person by means of an intentional tort. The Towle case, and the authorities upon which it relies,2

clearly concern intentional acts of minors wherein the victims of

such acts seek to recover from the parents. They do not concern

the rule, well established under the New Hampshire cases, where

an alleged tortfeasor seeks either contribution from or a bar to

recovery by the parents of the minor based on the failure of said

parents to exercise due care in their supervision of the minor.

Indeed, the New Hampshire court would not have done so

without expressly citing and either distinguishing or overruling

the line of cases which hold that in New Hampshire parents are

under a legal duty to exercise ordinary care for the safety of

their children, and if any failure in that respect on the parent

is found to be causal of the accident, the parent cannot recover

for the loss occasioned them by the injuries to their child.

Martineau v. Waldman, 93 N.H. 147, 36 A.2d 627 (1944); Cleveland

v. Reasbv, 92 N.H. 518, 33 A.2d 554 (1943); Bullard v. McCarthy,

89 N.H. 158, 195 A.2d 355 (1937).

2In Towle v. Kiman, supra, the plaintiff sought to recover for personal injuries sustained when he was assaulted by the minor child of the defendants. In refusing to accept the tort of negligent supervision in such circumstances, the court relied on its prior decision in Clark v. McKerlev, 126 N.H. 778, 497 A.2d 846 (1985), a case in which the minor set fire to the plaintiff's barn. The court also cited with approval an annotation entitled Parents' Liability for Injury or Damage Intentionally Inflicted by Minor Child, 54 A.L.R.3d 974 (1973). 3. Conclusion

For the reasons hereinabove outlined, the motion to dismiss

the counterclaim, document 9, must be and it is herewith denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

April 21, 1997

cc: David J. KillKelley, Esq. Debra Weiss Ford, Esq. Joseph M. McDonough III, Esq.