New York Injury Attorney Blog

Appellate Court of Illinois, First Judicial District: Miner v. Garrity

It was the Prussian military strategist Carl von Clausewitz who said “war is merely the continuation of politics by other means.” Angry ex-husband and lawyer on behalf of his children, Steven A. Miner, might say it this way: having my kids sue their mom for damages resulting from “bad mothering” is merely the continuation of divorce by other means.

Steven A. Miner II and his sister Kathryn brought suit against Kimberly Garrity (the former Mrs. Miner) for negligent and intentional infliction of emotional distress. Their claim: When they were minors, Garrity was a bad mom whose conduct was “fueled, in part, by [her] desire to retaliate against her ex-husband, toward whom she harbors great animosity.” The complaint enumerated a list of momma’s offenses over the years (pages “2” – “7” of the decision—well worth reading), which included:

The children were not treated equally at all times;
After the divorce, mom visited one child more than the other;
Mom refused to buy Kathryn a homecoming dress in 2007;
Mom failed to send Steven birthday presents for nine years;
One year she forgot Kathryn’s birthday; and, worse still,
Ms. Garrity once told her son Steven that if he didn’t buckle his seat belt “she would drive to the police station and tell the police that he would not put his seatbelt on.”

Enough maternal malfeasance to sustain a case? The former Mrs. Miner thought not.

The lower court agreed and dismissed all claims, stating,

Plaintiffs have failed to properly allege extreme and outrageous conduct on the part of the Defendant. The allegations set fourth here amount to a failure to buy dresses, failure to take them to the auto show, failure to provided financial assistance, failure to help with homework, failure to buy presents, and other petty grievances of parental attention of inadequacy. In essence, the Plaintiffs are suing their mother for bad mothering.

Bad mothering is just not actionable.

This appeal followed (and his ex-wife is harboring great animosity?!).

After considering the allegations against Ms. Garrity, the Appellate Court observed that under Illinois law, “parents have significant discretion in the upbringing of their children” and “the law is reluctant to interfere with such parental conduct...” Moreover, a parent “will not be held legally accountable in tort for every single insult or emotional slight that she might inflict upon others, only those which are ‘so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency.’”

None of Ms. Garrity’s alleged resentful child rearing regimen remotely approached that standard. Accordingly, the court held that “Fighting a bitter custody battle after a divorce and displaying favoritism among siblings might not be exemplary parental behavior, but neither are such actions beyond all bounds of decency in society.”

(If anything, such imperfect parenting is more the norm than the exception, even in the absence of a bitter divorce. If the Miner kids’ action was permitted to proceed, we would all end up in court as either plaintiffs or defendants or both.)

Case dismissed. Again.

This isn’t just a bad divorce.

It’s a divorce from reality.

And we wonder why people hate lawyers.

New York State Appellate Division, Second Department: McCabe v. Dutchess County

The rule in New York is that a child cannot sue his or her parents for damages resulting from negligent supervision. Kids always have accidents growing up. It’s part of life, not part of litigation. What about suing a foster parent? And suing the Department of Social services for placing you with the foster parent who was in charge when you got hurt?

According to the Second Department, the answer is the same: No can do.

Taylor Harris is the biological mother of 6 year old Jacob Harris. The mom had a drug problem. At birth, Jacob was found to have cocaine, opiates, marijuana and methadone in his urine. The hospital contacted Social Services and the child was placed in foster care with Diane Sherwood, one of the defendants to this action. About 16 months later, while living in the Sherwood home, Jacob climbed out of his “sleeping accommodation onto an adjacent dresser and fell to the floor.” Taylor regained custody soon thereafter and, ever the vigilant mom, commenced this action for money damages on the child’s behalf.

Sherwood and Dutchess County both moved for summary judgment. The lower court denied their motions. Both appealed.

Relying on Holodook v. Spencer, the Court of Appeals decision that held a child could not sue his folks for negligent supervision, the Second Department reversed and dismissed the case. As the high court observed in Holodook, “We can conceive a 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,” but, “[i]f 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…” Loosely translated: Kids get hurt, even when raised by the most diligent parents. Such accidents are not actionable.

“These same considerations apply to foster parents,” the McCabe court said, and “[w]e decline to impose such a heavy burden on foster parents.” To do so would discourage qualified and much needed individuals from becoming foster parents in the first instance, and would open the door to retaliatory suits brought by disgruntled biological parents or by difficult foster children.

Similarly, the Department of Social Services can hardly be held responsible for the type of accident that can happen in any home, even if it results in serious injury. Only when there's “sufficiently specific knowledge or notice of the dangerous conduct which caused the injury,” can the foster care agency be held liable.

The actions by Ms. Harris were dismissed.

If this had gone the other way, one wonders whether young Jacob Harris could have filed suit against mother Taylor Harris for the drug problem he was born with, the injury which landed him in foster care to begin with. Ms. Taylor may not have thought her course of action all the way through to its logical end, but there might have been some measure of justice had her son obtained a judgment against her.

The victory here goes to common sense. Unmitigated gall takes the loss. And along the way, the court fosters a new appreciation for how difficult it is to raise kids, no matter who's taken on the job.

Supreme Court of Delaware: Jianniney v. Delaware

Mapquest is great for directions. For restaurants along the way. And for finding your way to historic attractions like state prisons. But is Mapquest reliable enough to be considered evidence in a criminal case?

Jason Baker (the pseudonym the court gave him) was 13. He was home from school working outside his house. At about 11:30 a.m. a man later identified as Christopher Jianniney approached him. Young Baker ignored him and went indoors. Later that day, at bout 6:00 p.m. when Jason was taking out the trash, he was again approached by Jianniney who this time offered him $40 to show him his penis.

Baker ran into the house and got his mom. Jianniney beat a hasty retreat and mom and son drove the neighborhood looking for him without success. They called the cops and Jianniney was later arrested after neighbors ID’ed his car and placed him on the street at 6:00 p.m. on the date in question. Jianniney pleaded innocent and demanded his day in court.

At trial, Jianniney claimed he was at work at the time of the crime and couldn’t possibly be the perpetrator. His boss, Jerry Wilson, was called to testify. Jianniney, he said, was one of his fuel delivery drivers. He had punched in for work the morning of the crime. Based on the location of the truck yard, what his time card indicated and the deliveries he made, Wilson claimed Jianniney could not have been at Baker’s house at 11:30 a.m. By Wilson's own calculations, the drive would have taken way too long.

Prosecutors then cross examined Wilson about Mapquest. Wilson admitted that he was familiar with it and used it to determine how long it takes to get from one place to another. Yet Mapquest’s ETAs from the fuel yard to the scene of the crime were half what Wilson personally estimated for Jianniney to get to Baker’s house, which, the state argued, meant he could have been there on the morning in question. At the prosecutor’s request, the trial court admitted the Mapquest time estimates as an exception to the hearsay rule.

Jianniney was convicted.

Defendant then appealed claiming Mapquest’s time estimates between locations were not reliable enough to fall within the hearsay exception.

The Delaware Supreme Court agreed with the defendant.

It found that the state failed to show that Mapquest’s driving time estimates “are relied upon by the public or professional drivers.” In fact, the Mapquest website disclaims all warranties including that the information found there is free from defects. It also warns users that “weather, construction projects, traffic conditions, or other events may cause road conditions to differ from the listed results.” Given its own disclaimer and the variables that can make its time estimates inaccurate, Mapquest cannot be admitted as an exception to the hearsay rule. Apparently, the state took a wrong turn using it to convict Jianniney.

Unfortunately for the defendant, it was just a detour.

Mapquest had been used only to show that defendant could have made it to Baker’s house in the morning when his boss said he couldn’t. Mapquest wasn’t used to challenge defendant’s presence at Baker’s home when the child was propositioned at 6:00 p.m. and Wilson did not offer testimony in defense of Jianniney’s whereabouts at that time. Moreover, even if Mapquest should not have been admitted into evidence, two neighbors saw the defendant that day and placed him at the scene.

So Mapquest travel times were hearsay, but their use in court was harmless error. Well, maybe not for Jianniney, who's life may have taken a turn for the worse. As a potential guest of the state, he now runs the risk that his new friends will ask him the same thing that got him arrested in the first place.

One wonders if he appreciates the irony.

Supreme Court of Illinois: The People of the State of Illinois v. Jenna M. Christopherson

Can a minor who supplies another minor with beer be charged with unlawful delivery of alcohol to a minor?

Does your answer change if the minor who received the alcohol dies in a one-car accident after drinking some of the contraband brew?

Illinois law provides in part that:

No person, after purchasing or otherwise obtaining alcoholic liquor, shall sell, give, or deliver such alcoholic liquor to another person under the age of 21 years, except in the performance of a religious ceremony or service.

Defendant Christopherson was a minor. She provided the late Jamie Smith, also a minor, with a 30-pack of Icehouse beer and two cases of Bud Light. After his death at the wheel, she was charged under the above section with a Class A misdemeanor (even though the same statute provides that since death resulted, she could have been charged with a Class 4 felony). She moved to dismiss claiming the statute didn’t intend to apply to minors, but to adults who could legally buy booze then illegally give it to minors. In response, the state argued that the language of the statute was unambiguous: Defendant was a person, which was all that was required by law, and as such, she could be charged under the statute.

The lower court agreed with the defendant and dismissed the charge. It also agreed that the evil the statute addressed was “adults providing alcohol to minors.” The state appealed.

The appellate court reversed, finding that “the commonly understood meaning of ‘person’ is ‘an individual human being,’ and that … ‘no person’ would encompass juveniles.” Defendant appealed.

Defendant’s main argument was that if the alcohol laws were read in context, “it’s clear that the entire section is directed only at those people who are authorized to possess liquor,” to wit, adults, and since defendant was not authorized to possess liquor because of her age, she couldn’t be charged (this logic brings to mind the defendant who shoots his parents to death, then asks the court for leniency because he’s now an orphan).

The Illinois Supreme Court wasn’t buying, and neither should have defendant. It found that the statutory language “is clear and unambiguous” and because defendant is “an individual human being” she is a “person” under the statute, regardless of her age.

The true legislative intent of the statute was to keep alcohol out of the hands of minors, no matter how it gets to them. As the court noted, “The tragic facts of this case indicate that the potential harm when alcohol reaches the hands of minors is no different when the alcohol is provided by another minor rather than by an adult.” Moreover, that the state had mercy (or a weak case) and charged defendant with a felony instead of a misdemeanor did not mean that it conceded that the statute was ambiguous or defective.

It’s back to the lower court for Ms. Christopherson to take a plea or go to trial.

Certainly adults know the risks of supplying minors with booze, guns, drugs and other controlled substances. And those who don’t know the risks at least know they can get in serious trouble for doing so. Minors should become aware of the same potential trouble. Unfortunately, the very nature of being a minor is not to appreciate the risks to self and others, to be ignorant of the law, and too often, not to care one way or the other what might happen.

When it comes to minors buying or dying for a drink, there may be more to answer to than just parents, and way more to regret the morning after.