Duhan v. Milanowski

• Decision Date: 16 October 1973
• Citation: 348 N.Y.S.2d 696,75 Misc.2d 1078
• Parties: K. Marie DUHAN et al., Plaintiffs, v. Walter MILANOWSKI and Veterans of Foreign Wars, Inc., of Salamanca, New York, Defendants.
• Court: New York Supreme Court

Page 696

348 N.Y.S.2d 696

75 Misc.2d 1078

K. Marie DUHAN et al., Plaintiffs, v. Walter MILANOWSKI and Veterans of Foreign Wars, Inc., of

Salamanca, New York, Defendants.

Supreme Court, Cattaraugus County.

Oct. 16, 1973.

G. Sydney Shane, Shane & McCarthy, Olean, for defendants.

Louise E. Carey, Carey & Ruszczyk, Buffalo, for plaintiffs.

EDWARD M. HOREY, Acting Judge.

OPINION

In her complaint the plaintiff sets forth a separate cause of action for assault and for negligence against each defendant. Similar causes of action are pleaded for five infant children of the plaintiff. In these latter causes of action the children collectively seek to recover damages by reason of deprivation of 'services and society' of their mother due to the conduct of the defendants.

The defendants move to dismiss those causes of action in the plaintiff's complaint which are brought on behalf of the five infant children of the plaintiff.

The motion presents squarely the issue of whether or not a child has a cause of action for damages for loss of services, comfort and assistance of a parent as a consequence of injury to the parent. Neither party has cited any decisional law of New York on the precise point and the research of this court has disclosed none. The issue appears to be one of first impression in this state.

It is important to note at the outset that at common law no action existed in favor of a child for injuries sustained by his parent. Cooley on Torts, Fourth Edition, Vol. 2, Sec. 174, page 41; Pleasant v. Washington Sand & Gravel Co., 104 U.S.App.D.C. 374, 262 F.2d 471 at 472--473 (1958); Halberg v. Young, 41 Hawaii 634 (Sup.Ct., 1951); Damages in Personal Injury and Wrongful Death Cases by Sol Schreiber, page 366. The consequence of this void is that it raises preliminary questions of Constitutional limitations on this court as a result of certain provisions contained in our state Constitution referrable to changing the common law.

Article 1, Section 14 of the New York State Constitution provides that the common law in effect on April 19, 1775 shall be and continue the law of the State of New York 'subject to such alteration as the Legislature shall make concerning the same'. (Italics added). This provision was included in the first Constitution of this state and has been continued through every Constitutional revision since. (See historical review in Waters & Co. v. Gerard, 189 N.Y. 302 at 308, 82 N.E. 143 at 145).

Despite the clear and unequivocal language that alteration of the common law in New York is the province of the Legislature and despite the clear and obvious relevance of that provision to those cases which seek change in the law by judicial action, Article 1, Section 14 of the New York State Constitution remains generally unmentioned in the jurisprudence of this state. The research which this court has made discloses only one instance in which the Constitutional provision was cited on the issue of Judicial prohibition to alter the common law. This was in the concurring opinion of Justice Woodward in Gibson v. Casein Manufacturing Co., 157 App.Div. 46, 141 N.Y.S. 887 (Third Dept., 1913). There, after quoting the Constitutional provision (formerly Section 16 of Article 1) the Justice stated: 'And this, I take it, precludes the right of the courts to alter the common law'. (See 157 App.Div. 46 at 49, 141 N.Y.S. 887 at 889). Strange it is that no Appellate Court in this state has since seen fit to either affirm the view of Justice Woodward or to distinguish his construction of the Constitutional limitation, or in fact to even note the existence of the Constitutional provision.

Nor does this avoidance appear to be merely a matter of Judicial oversight. In Millington v. Southeastern Elevator Co., Inc., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897, decided as recently as 1968, it was specifically urged that Article 1, Section 14 of the New York State Constitution precluded the courts and authorized only the Legislature to alter the common law to the end that a wife might recover for loss of consortium. (See pages 9 and 10, Brief of Goodrich Associates in Court of Appeals from record on appeal in Court of Appeals). To this the Court of Appeals said: 'Finally we turn to the argument that change Should come from the Legislature. No recitation of authority is needed to indicate that this court has not been backward in overturning unsound precedent in the area of tort law'. 22 N.Y.2d 498 at 508, 293 N.Y.S.2d 305 at 313, 239 N.E.2d 897 at 903. (Italics added). There followed a quotation from Woods v. Lancet, 303 N.Y. 349 at 355, 102 N.E.2d 691 at 694: 'We act in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice. . . . Legislative action there could, of course, be, but we abdicate our own function in a field peculiarly nonstatutory when we refuse to consider an old and unsatisfactory court-made rule'. The argument that the court Could not Constitutionally change the law was treated by the court as an argument that it Should not change the law. Article 1, Section 14 of the New York State Constitution was not mentioned.

The absence of reference to the Constitutional restriction is not confined to those decisions which determine to alter or add to the common law. In Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567 (later overruled 303 N.Y. 349, 102 N.E.2d 691), the court, in an opinion by Judge Pound, concluded that an infant plaintiff did not have a cause of action at common law for prenatal injuries. (See 232 N.Y. 220 at 224, 133 N.E. 567 at 568). However, the refusal to permit the establishment of such cause of action was not premised on a Constitutional limitation, but rather on the conclusion that the reasons in favor of recovery at the time of that decision did not sufficiently outweigh those against it 'as to call for judicial legislation on the question'. (Page 224, 133 N.E. page 568).

A fair reading of the decisional law of this state compels the conclusion that there is a reluctance if not a studied avoidance by our courts to rule that only the Legislature and not the judiciary may Constitutionally alter the common law. It is a fact that on occasion our courts have judicially altered principles grounded in the common law.

Philosophically, the decisions directing change appear to be supported by a juridical concept that the common law of this state is to be viewed as a living embryo and not as a mummified cadaver. In Gallagher v. St. Raymond's Church, 21 N.Y.2d 554, 289 N.Y.S.2d 401, 236 N.E.2d 632, it was stated: 'The common law of this State is not anachronism, but is a living law which responds to the surging reality of changed conditions'. (Page 558, 289 N.Y.S.2d page 404, 236 N.E.2d page 634). In Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3, the Court of Appeals stated: 'To the suggestion that stare decisis compels us to perpetuate it until the legislature acts, a ready answer is at hand. It was intended, not to effect a 'petrifying rigidity', but to assure the justice that flows from certainty and stability. If, instead, adherence to precedent offers not justice but unfairness, not certainty but doubt and confusion, it loses its right to survive, and no principle constrains us to follow it.' (Page 667, 163 N.Y.S.2d page 11, 143 N.E.2d page 9).

A comparison of judicial decisions directing change in the law with those refusing to do so is informative. A pattern is discernible.

Where change is the determination, typically the spectre of other past fixed rules is raised. The illogic of their inflexible application over the course of changing times is cited. The injustices that flowed from their continuance are recounted. Their change by prior judicial action are cited as enlightened and ennobling precedent for the new rule the court is about to announce. A hallmark of these decisions announcing 'it's time for a change' is their preoccupation with, and rhetorical references to the deficiencies in the law in the middle ages. For example, cited as buttressing support for a new rule are the following: 'When these ghosts of the past stand in the path of justice clanking their midiaeval chains the proper course for the judge is to pass through them undeterred'. From United Australia Ltd. v. Barclay Bank Ltd. (1941) A.C. 1, 29 and 'if that (the absence of a prior decision) were a valid objection, the common law would now be what it was in the Plantagent period'. Both cited with approval in Woods v. Lancet, 303 N.Y. 349 at 355, 102 N.E.2d 691 at 694 overruling Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567 and establishing the right of suit for prenatal injuries. Decisions altering existing law are typically lengthy.

In contrast, when preservation of the status quo is the determination of the courts, the opinions are generally more brief. The absence of any definitive common law determination in favor of the new rule is noted. Prior judicial determinations contrary to the proposed change are duly cited. Application of the principle of 'stare decisis' is urged. There is typically added the argument that it is the binding force of precedent that has lent stability and uniformity to our law. See for example, Kronenbitter v. Washburn Wire Co., 4 N.Y.2d 524, 176 N.Y.S.2d 354, 151 N.E.2d 898 (1958) which held that a wife couldn't recover for loss of consortium. (Decision overruled ten years later in Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 837 (1968).

Precisely when change of the common law is a proper exercise of the judiciary is not clear. Whether the exercise is to be confined to adaptation and alteration of 'decisional law' or 'court-made rules' or to fields of law 'peculiarly non-statutory', see Woods v. Lancet, 303 N.Y. 349, page 355, 102 N.E.2d 691, page 694, and Bing v. Thunig, 2 N.Y.2d 656 at 667, 163 N.Y.S.2d 3 at 11, 143 N.E.2d 3 at 9; or to those instances in which a court...