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Parents generally cannot be held liable for failure to supervise if their child accidentally hurts another in the course of play activity, the New Jersey Supreme Court ruled on March 29. By a slim majority, the court, in Buono v. Scalia, A-101-02, held blameless the parents of a 5-year-old boy who, having just learned how to ride a bicycle, accidentally struck and injured a 16-month-old girl during a block party. The majority said it was following the court’s ruling, in Foldi v. Jeffries, 93 N.J. 533 (1993), that parental immunity is pierced only in cases of parents’ willful or wanton failure to supervise children. Justice Peter Verniero, quoting the Appellate Division below, said that the ruling “represents, not an attempt to expand immunity, but simply our determination that the immunity declared in Foldi embraces the claims alleged by the injured third party in this case that are said to have arisen from the negligent supervision of [the child] by his father.” But in a partial dissent, Justices Virginia Long, James Zazzali and Barry Albin found no rationale in Foldi for using parental immunity to block a third-party suit against a child tortfeasor’s parents. Long pointed out that there is a strong movement nationally to abrogate parental immunity, since its original justifications (family harmony, deterrence of fraud and collusion and protecting family assets) have been long ago debunked. Courts now explain the doctrine in terms of parental autonomy, wrote Long, but “[as] the majority recognizes, that theory has its limits. Honoring a parent’s authority over the physical, moral, emotional, and intellectual growth of children is based on the judgment that a parent’s ‘philosophy’ of child rearing requires deference. That is quite different from giving a parent a free pass regarding issues that do not implicate the subjective exercise of that philosophy.” But Verniero said the Foldi doctrine should be interpreted case by case. “We are confident that trial courts in their role as gatekeepers are capable of construing the doctrine sensibly to immunize parents when necessary to protect parental decision-making related to customary child care or supervision and, conversely, to deny immunity when the alleged conduct falls outside the � policies underpinning that decision,” he wrote. John Mallon, the lawyer for the defendants Michael and Lisa Scalia, says the majority got it right. “Kids are going to do things and hurt each other. You have to let kids be kids and let children explore things, learn and develop,” says Mallon, a partner at Secaucus’ Chasen, Leyner, Bariso & Lamparello. Plaintiffs’ lawyer Matthew Pomo, a partner at Kearny’s Doyle & Brady, declines comment.

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