Campbell v. Westmoreland Farm, Inc.

• Decision Date: 14 June 1967
• Docket Number: No. 67-C-1.,67-C-1.
• Citation: 270 F. Supp. 188
• Parties: James J. CAMPBELL, as Administrator of the Estate of Margaret C. Campbell, deceased, James J. Campbell and Marjorie Campbell, Plaintiffs, v. WESTMORELAND FARM, INC., James A. Roe, Sr., James A. Roe, Jr., Marie Roe, Frances Kesler, Fred Hansen, John H. Biedul, Vincent Caccese, Sr., Vincent Caccese, Jr. and Thomas O'Brien, Defendants.
• Court: U.S. District Court — Eastern District of New York

270 F. Supp. 188

James J. CAMPBELL, as Administrator of the Estate of Margaret C. Campbell, deceased, James J. Campbell and Marjorie Campbell, Plaintiffs, v. WESTMORELAND FARM, INC., James A. Roe, Sr., James A. Roe, Jr., Marie Roe, Frances Kesler, Fred Hansen, John H. Biedul, Vincent Caccese, Sr., Vincent Caccese, Jr. and Thomas O'Brien, Defendants.

No. 67-C-1.

United States District Court E. D. New York.

June 14, 1967.

Shayne, Dachs, Weiss, Kolbrener & Levy, Mineola, N. Y., for plaintiffs; Norman H. Dachs, Mineola, N. Y., of counsel.

Daniel J. Coughlin, New York City, for defendants Westmoreland Farm, Inc., James A. Roe, Sr., James A. Roe, Jr., Marie Roe, Frances Kestler (sued herein as Frances "Kesler"), Fred Hansen and John H. Biedul; Patrick J. Hughes, New York City, of counsel.

BARTELS, District Judge.

This is a diversity action¹ for wrongful death and mental suffering against the owners of two vehicles and two unidentified drivers among a list of other defendants. Plaintiffs apparently do not know which vehicle caused the accident or who was the driver. The complaint alleges three causes of action, the first by the administrator for wrongful death of his daughter Margaret C. Campbell predicated upon the negligence of the operator or operators of the offending vehicle or vehicles under New York Decedent Estate Law, McKinney's Consol. Laws, c. 13 §§ 130-133, and the second and third separately stated, respectively, by the father and mother of the victim, predicated upon the results of the culpable action of the operator or operators of the offending vehicle or vehicles in leaving the scene without stopping and reporting the accident, his name, address and license number. This failure, they allege, caused an investigation by the authorities including a Grand Jury investigation requiring the participation of both the father and mother and causing extensive newspaper publicity which in turn caused both the father and mother mental and emotional anguish and in addition caused the father to suffer a coronary attack.

Certain of the defendants (who may be designated as the Westmoreland Group) move pursuant to Rule 12(b) (6), Fed. Rules Civ.Proc., 28 U.S.C.A., to dismiss all three causes of action as to them upon the ground that they state no claim against these defendants. The objections to the first cause of action and the objection to the claim of conspiracy to conceal the identity of the wrongdoer in the two remaining causes of action were obviated at the hearing, leaving for disposition the attack against the remaining allegations in the second and third causes of action.

It is quite clear that under the New York wrongful death statute recovery is limited to pecuniary injuries and there is no indemnification for loss of the comfort and society of the decedent or similar non-pecuniary losses. Fornaro v. Jill Bros. Inc., 1964, 42 Misc.2d 1031, 249 N.Y.S.2d 833, rev'd on other grounds, 22 A.D.2d 695, 253 N.Y.S.2d 771, affirmed, 1965, 15 N.Y.2d 819, 257 N.Y.S.2d 938, 205 N.E.2d 862. Realizing this, it appears that the individual plaintiffs have cast the second and third causes of action in an entirely different mold. In doing so, however, they cannot under the circumstances set forth any claim that is causally connected with the wrongful death and must limit their cause of action to the breach of an independent duty to the plaintiffs which caused the injury. As a matter of law, the Court has difficulty in finding either such a duty or any causal connection with the alleged mental injuries which would permit recovery.

The only obligation on the part of the defendants to identify themselves appears in Section 600 of the New York Vehicle and Traffic Law,² McKinney's Consol.Laws, c. 71 which requires such identification. However, this identification is to be made to the injured party or the authorities and not to the relatives of the injured party, to whom there is no duty. The purpose of the section is to prevent negligent motorists from seeking to evade civil or criminal consequences by leaving the scene without making the required report including their identification (People v. Leigh, 1959, 19 Misc.2d 675, 189 N.Y.S.2d 573; People v. Hampton, 1960, 22 Misc.2d 432, 197 N.Y.S.2d 959) and its mandate is applicable to both motorists who are as well as those who are not at fault for the accident (People v. Orr, 1930, 138 Misc. 535, 246 N.Y.S. 673). While a violation of the statute constitutes a misdemeanor, it contains no language creating any cause of action on behalf of the injured party and certainly not on behalf of his relatives. This is illustrated by the fact that no violation of the statute occurs if a culpable motorist leaves the scene of an accident without knowing that there has been any damage or injury sustained. People v. Spiegelman, 1963, 19 A.D.2d 538, 240 N.Y.S.2d 40; People v. Edwards, 1962, 35 Misc.2d 147, 228 N.Y.S.2d 968, rev'd on other grounds, 1963, 12 N.Y.2d 969, 238 N.Y.S. 2d 962, 189 N.E.2d 496. It would be strange if an injured plaintiff could recover when a culpable motorist left the scene with knowledge of the injury but could not recover if the same motorist departed from the scene without such knowledge—although the injury would be the same in both cases.

Accordingly, if the plaintiffs are to recover in their second and third causes of action, they must find some common law duty owed by the defendants not to leave the scene of the accident...