Dorkin v. American Exp. Co.
| Decision Date | 25 June 1973 |
| Citation | 74 Misc.2d 673,345 N.Y.S.2d 891 |
| Parties | Murray DORKIN and Natalie Dorkin, Plaintiffs, v. AMERICAN EXPRESS COMPANY, Defendant. |
| Court | New York Supreme Court |
Nicholas J. Grasso, Schenectady, for plaintiffs.
Carter, Conboy, Bardwell & Case, Albany, for defendant.
The defendant moves for summary judgment dismissing the complaint (§ 3212 CPLR).
The plaintiffs contracted with the defendant for a European tour and while being transported from Antwerp to Amsterdam in Holland, the plaintiff, Natalie Dorkin, sustained personal injuries when the tour bus in which she and her husband were riding braked abruptly causing her to be thrown to the floor. The plaintiffs particularized the negligence of the defendant herein as a failure to exercise reasonable and prudent care in providing or causing to be provided safe equipment and careful personnel in the discharge of its contractual obligation to supply a safe, entertaining European vacation. Such failure, plaintiffs contend, support one or both of their causes of action in negligence and/or breach of contract.
In my view, neither cause of action can survive the motion.
If the defendant, American Express Company, were the agent of the various hotels and transportation companies that actually supplied the services abroad, then liability must fail on the ground that an agent is not responsible for the tortious conduct of a principal (Sacks v. Loew's Theatres, Inc., 47 Misc.2d 854, 263 N.Y.S.2d 253). Next, it must be presumed that in today's shrinking but more affluent world that regards jet airline ocean crossings as routine vacation jaunts, plaintiffs were aware that the defendant did not itself own or control airlines, foreign hotels or modes of transportation, but, rather, acted as domestic agent for those foreign or domestic corporations whose business it is to supply these services. In this conext it can be stated that the mere fact that an agent is the resident agent of a foreign principal does not of itself make the agent liable to a third person. In the absence of agreement or acts indicating an intention of the contracting parties to superadd the responsibility of the agent, there is no such responsibility of the agent to third parties for tortious acts of the principal (Bauman Rubber Co. v. Karl Light & Sons, 137 Misc. 258, 244 N.Y.S. 448). Similarly, there is no liability on the part of the agent for breach of contract by the principal. Indeed, in the instant case there was no breach of contract either between plaintiffs and the defendant agent or between plaintiffs and the bus company on whose vehicle the accident happened. American Express Company contracted on behalf of its principals, if we regard the defendant as an agent (which I do not, although I recognize that the nomenclature 'travel agent' is used to designate or describe the nature of defendant's business), to provide for a planned, structured trip to Europe with a designated place of beginning and a point of termination covering a stated number of days and to provide for food and lodging and transportation between...
To continue reading
Request your trial
-
Rusyniak v. Gensini
...contract liability, an agent can not be sued for actions taken on behalf of a principal.") (collection cases); Dorkin v. Am. Express Co., 74 Misc.2d 673, 345 N.Y.S.2d 891, 893 (N.Y.Sup.Ct., Albany County, 1973) ("[A]n agent is not responsible for the tortious conduct of a principal.") (cita......
-
Honeycutt v. Tour Carriage, Inc., 5:95CV134-MCK.
...of other kinds of services to the tours, such as transportation services and accommodations. See, e.g., Dorkin v. American Express Co., 74 Misc.2d 673, 345 N.Y.S.2d 891 (1973), aff'd, 43 A.D.2d 877, 351 N.Y.S.2d 190 Plaintiff's attempt to hold moving defendants liable for the injuries she s......
-
Rivers v. State
...situations. (Harper and James, supra, p. 1406; 3 NY Jur 2d, Agency §§ 358-360, pp. 185-190; see generally Dorkin v. American Express Company, 74 Misc.2d 673, 675, 345 N.Y.S.2d 891, affd. 43 A.D.2d 877, 351 N.Y.S.2d 190.) As one authority has It is difficult to suggest any criterion by which......
-
Cubby, Inc. v. CompuServe Inc.
...N.V., 1987 WL 14918, * 3, 1987 U.S. Dist. LEXIS 6500, * 7-* 8 (S.D.N.Y. July 17, 1987) (quoting Dorkin v. American Express Co., 74 Misc.2d 673, 675, 345 N.Y.S.2d 891, 894 (Sup.Ct.1973), aff'd, 43 A.D.2d 877, 351 N.Y.S.2d 190 (3d Dep't 1974)); accord Spiro v. Pence, 566 N.Y.S.2d 1010, 1012 (......
-
Chapter § 4.04 LIABILITY OF HOTELS AND RESORTS FOR COMMON TRAVEL PROBLEMS
...Inc., 15 Aviation Cases 17,660 (N.Y. Sup. 1979) (bus crash; no liability for tour operator or airline); Dorkin v. American Express Co., 74 Misc. 2d 673, 345 N.Y.S.2d 891, aff'd 43 A.D.2d 877, 351 N.Y.S.2d 190 (1974) (bus accident; no liability for tour operator).[423] See, e.g.: Fifth Circu......