Barker v. Kallash

• Decision Date: 05 July 1984
• Citation: 479 N.Y.S.2d 201,63 N.Y.2d 19,468 N.E.2d 39
• Parties: , 468 N.E.2d 39 James BARKER, as Guardian ad Litem of George Barker, an Infant, Appellant, et al., Plaintiffs, v. Abdullah KALLASH et al., Defendants, and Daniel Melucci, Sr., and Another, as Guardians ad Litems of Daniel Melucci, Jr., et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 201

479 N.Y.S.2d 201

63 N.Y.2d 19, 468 N.E.2d 39

James BARKER, as Guardian ad Litem of George Barker, an Infant, Appellant, et al., Plaintiffs, v. Abdullah KALLASH et al., Defendants and Daniel Melucci, Sr., and Another, as Guardians ad Litems of Daniel Melucci, Jr., et al., Respondents.

Court of Appeals of New York.

July 5, 1984.

Richard T. Farrell, Brooklyn, and Marvin Suss, New York City, for appellant

Jeffrey S. Rovins and Salvatore A. Mazzoni, New York City, for respondents.

Rosario D'Apice, New York City, for Abdullah Kallash and another, defendants.

OPINION OF THE COURT

WACHTLER, Judge.

The question on this appeal is whether the 15-year-old plaintiff, who was injured while constructing a "pipe bomb", can maintain a tort action against the 9-year-old defendant who allegedly sold the firecrackers from which the plaintiff's companions extracted the gunpowder used to construct the bomb. The trial court granted summary judgment dismissing the cause of action against the defendant and his parents for alleged negligent supervision. The Appellate Division affirmed. The plaintiff has appealed by leave of this court.

The facts are in dispute; however, for the purposes of this appeal, dealing with a motion for summary judgment, we must accept the plaintiff's version of the events, as the lower courts have done.

On June 25, 1976 the plaintiff, George Barker, and two companions, Ayman and Anas Kallash, made a "pipe bomb" in the backyard of the Barker home in Brooklyn. At the time the plaintiff was nearly 15 years old and the Kallash brothers were 14 and 15, respectively. The bomb was made by filling a metal pipe, three or four inches long and one inch wide, with gunpowder.

The plaintiff concededly obtained the pipe from his father's home workshop where he also found the caps to seal it and a power drill he used to make a hole for the fuse. Although his father also used gunpowder to reload shotgun shells at home, the plaintiff contends that the gunpowder used in the bomb was supplied by the Kallash brothers who extracted it from firecrackers. He testified, at an examination before trial, that they had told him that the day before the incident they had purchased firecrackers from the defendant Daniel Melucci, Jr., who was not quite nine years old at the time. Indeed, the plaintiff testified that he had told the Kallash brothers where the firecrackers could be purchased. The injury occurred after the pipe had been capped at one end and the plaintiff, and one of the Kallash brothers, had poured the gunpowder into it. As the plaintiff was screwing the second cap on to the pipe it exploded, severely injuring his hands.

Plaintiff, through his father, brought an action against the Kallash brothers for their part in constructing the bomb, against Daniel Melucci, Jr., for allegedly selling the firecrackers to the Kallashes, and against Robert Judge, another infant, who allegedly sold the firecrackers to Melucci. In each instance the plaintiff also sued the infants' parents for negligent supervision.

After examination before trial, the Meluccis moved for summary judgment, principally on the ground that the plaintiff is barred from recovering for injuries sustained while engaged in wrongful or illegal conduct. The trial court granted the motion holding that the plaintiff "by participating in the making of a pipe bomb was engaged in wrongful if not illegal conduct" and noted that the courts of this State have consistently refused "to allow a party to establish a claim based on his own wrongful conduct". The court also observed that the "fact that New York now has a comparative negligence or fault statute (CPLR 1411) would have no bearing upon this established public policy". After this motion was granted, the Kallashes moved to dismiss the cause of action against them on the same ground. Determination of that motion was stayed pending this appeal.

The Appellate Division affirmed noting that the "kind of activity in which plaintiff was engaged when injured cannot be passed off lightly as mere prankish or foolish conduct * * * Certainly, this case constitutes a striking illustration of the potential for grave harm to life and limb that such a dangerous instrumentality possesses, and is the most powerful of evidence in support of the conclusion that pipe bomb making, which has been condemned by the Penal Law, is beyond any doubt injurious to the public interest". The court also found no merit to the plaintiff's reliance on CPLR 1411 (91 A.D.2d 372, 377, 459 N.Y.S.2d 296).

At the outset a distinction must be drawn between lawful activities regulated by statute and activities which are entirely prohibited by law. In the first instance, it is familiar law that a violation of a statute governing the manner in which activities should be conducted, would merely constitute negligence or contributory negligence (see, e.g., Platz v. City of Cohoes, 89 N.Y. 219; Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814; Corbett v. Scott, 243 N.Y. 66, 152 N.E. 467; Humphrey v. State of New York, 60 N.Y.2d 742, 469 N.Y.S.2d 661, 457 N.E.2d 767). Such cases would today be resolved under the rule of comparative negligence (CPLR 1411). However, when the plaintiff has engaged in activities prohibited, as opposed to merely regulated, by law, the courts will not entertain the suit if the plaintiff's conduct constituted a serious violation of the law and the injuries for which he seeks recovery were the direct result of that violation. In this latter instance recovery is denied, not because the plaintiff contributed to his injury, but because the public policy of this State generally denies judicial relief to those injured in the course of committing a serious criminal act (Reno v. D'Javid, 42 N.Y.2d 1040, 399 N.Y.S.2d 210, 369 N.E.2d 766). In the Reno case a woman who submitted to an illegal abortion could not recover for alleged negligence on the part of the physician performing the operation (Reno v. D'Javid, supra ). The rule is based on "the paramount public policy imperative that the law, whatever its content at a given time or for however limited a period, be obeyed" (Reno v. D'Javid, supra ). It extends the basic principle that one may not profit from his own wrong (Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188; Carr v. Hoy, 2 N.Y.2d 185, 158 N.Y.S.2d 572, 139 N.E.2d 531) to tort actions seeking compensation for injuries resulting from the plaintiff's own criminal activities of a serious nature.

The rule denying compensation to the serious offender would not apply in every instance where the plaintiff's injury occurs while he is engaged in illegal activity (see Restatement, Torts 2d, § 889, Comment b). Thus if the plaintiff in the example cited above had been injured in an automobile accident as a result of another's negligence, she would not be denied access to the courts merely because she was on the way to have the illegal operation performed (see, e.g., Restatement, Torts 2d, § 889, Comment b, Illustration 3). A complaint should not be dismissed merely because the plaintiff's injuries were occasioned by a criminal act (cf. Humphrey v. State of New York, 60 N.Y.2d 742, 744, 469 N.Y.S.2d 661, 457 N.E.2d 767, supra; Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794). However, when the plaintiff's injury is a direct result of his knowing and intentional participation in a criminal act he cannot seek compensation for the loss, if the criminal act is judged to be so serious an offense as to warrant denial of recovery (Reno v D'Javid, supra ). ¹ Thus a burglar who breaks his leg while descending the cellar stairs, due to the failure of the owner to replace a missing step cannot recover compensation from his victims. As indicated the rule is grounded in public policy and holds that a claimant whose injuries are the direct result of his commission of what is judged to be serious criminal or illegal conduct is not entitled to recover. It involves preclusion of recovery at the very threshold of the plaintiff's application for judicial relief.

The plaintiff urges that this rule should not apply to his case for a number of reasons. Many of the arguments have theoretical appeal, as the dissent has demonstrated. None, however, are sufficient on the facts of this particular record to warrant sending the case to a jury.

First, he contends that his acts were not so egregious and that the case in essence involves nothing more than "a claim arising out of injuries suffered by one of several youngsters playing with fireworks shortly before the Fourth of July". It is true that not every violation of the law, no matter how petty or slight, will serve to completely resolve a question of tort liability (Corbett v. Scott, 243 N.Y. 66, 152 N.E. 467, supra ). A plaintiff will be precluded from seeking compensation where his injuries were a direct result of a serious violation of the law involving hazardous activities which were not justified under the circumstances. In the case before us the plaintiff's conduct may not fairly be characterized as a minor dereliction. By his own admission his injuries did not result from the mere use of firecrackers, but from his efforts to incorporate the gunpowder extracted from the firecrackers into a pipe bomb. Constructing a bomb is a far more dangerous activity not only to the maker, but to the public at large, and is treated as a far more serious offense under the law (compare Penal Law, § 265.02, subd. with Penal Law, § 270.00, subd. 2). Certainly if the plaintiff had decided to use the gunpowder in a gun, it could not be said that he was merely playing with firecrackers because the powder had originally been obtained from firecrackers. In addition, as the Appellate Division noted, the extent of the plaintiff's injuries, which were a foreseeable consequence of a mishap, testify to the serious nature of his conduct. ² Secondly, the plaintiff claims dispensation from the general rule...