But what if the child was being supervised by a foster parent rather than his biological parent? In the 36 some-odd years since Holodook, that question was never decided by a New York appeals court - until now.
In McCabe v. Dutchess County, the 16-month old infant plaintiff climbed out of his crib and onto a dresser, and then fell from the dresser, sustaining serious personal injuries, including a fractured leg. The infant, through his court-appointed guardian, then sued his foster parents to recover damages for his personal injuries. (By way of background, the reason he was in foster care to begin with was because his mother had been found to have traces of cocaine in her blood at the time he was born.)
In reversing the trial court's decision that had allowed the infant's claim against his foster parents to stand, the Appellate Court cited the now-famous policy considerations outlined by the Holodook court for barring negligent supervision claims by children against their parents:
"We can conceive of few, if any, accidental injuries to children which could not have been prevented, or substantially mitigated, by keener parental guidance, broader foresight, closer protection and better example. Indeed, a child could probably avoid most physical harm were he under his parents' constant surveillance and instruction, though detriment more subtle and perhaps more harmful than physical injury might result. If the instant negligent supervision claims were allowed, it would be the rare parent who could not conceivably be called to account in the courts for his conduct towards his child directly ..."
The court continued as follows:
"These same considerations apply to foster parents, who are responsible for the around-the-clock supervision of the day-to-day activities of children under their care for extended periods of time and are required to treat the children as members of their households."
Clearly, the emotions and policy decisions underlying this decision are complicated. But in the foster parent context, I don't either extreme is correct. In my view, I think a better rule, on policy grounds, would be to immunize foster parents from standard negligence claims, but to allow for liability if they are found grossly negligent, or reckless, thereby protecting both foster parents as well as the children.