Gelbman v. Gelbman

• Court: New York Court of Appeals
• Writing for the Court: BURKE; FULD
• Parties: , 245 N.E.2d 192 Adele GELBMAN, Appellant, v. James D. GELBMAN, Respondent.
• Decision Date: 09 January 1969

Page 529

297 N.Y.S.2d 529 23 N.Y.2d 434, 245 N.E.2d 192 Adele GELBMAN, Appellant,
v.
James D. GELBMAN, Respondent. Court of Appeals of New York. Jan. 9, 1969.

[23 N.Y.2d 435] David C. Gilberg and Michael H. Gilberg, Mount Vernon, for appellant.

[23 N.Y.2d 436] William T. Gallagher, White Plains, for respondent.

BURKE, Judge.

Plaintiff Adele Gelbman was the passenger in an automobile owned by her and operated by her unemancipated 16-year-old son. This vehicle collided with the automobile owned and driven by one Herman Rudder while proceeding along a major thoroughfare in White Plains. Plaintiff, seriously injured in the accident, has commenced separate negligence actions against both drivers. The Rudder litigation has not yet been concluded, and is not now before the court. An insurance company, representing her son in the second action, has interposed as an affirmative defense the fact that defendant is the unemancipated son of plaintiff. The trial court, relying on prior decisions of this court, responded

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by dismissing the complaint, 52 Misc.2d 412, 275 N.Y.S.2d 712. That determination was unanimously affirmed by the Appellate Division, 28 A.D.2d 826, 282 N.Y.S.2d 670.

In this appeal, plaintiff requests that we review and then revoke a rule of this State prohibiting child-parent suits for nonwillful torts, first established in 1928 (Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551) and twice reaffirmed (Cannon v. Cannon, 287 N.Y. 425, 40 N.E.2d 236; Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718). While those cases dealt with suits by minors against parents, the converse of the present situation, the underlying policy considerations which influenced those decisions--if presently viable--should be equally determinative of this appeal.

The majority in Badigian proffered three reasons for maintaining the intrafamily immunity doctrine, barring suits for nonwillful torts. Thus, it was noted that no other jurisdiction had seen fit to abolish the immunity doctrine. This inactivity was attributed, at least in part, to the belief that a suit by a child against a parent would have serious consequences upon the unity of that family. The immunity rule was characterized [23 N.Y.2d 437] as 'a concept that cannot be rejected without changing the whole fabric of our society, a fundamental idea that is at the bottom of all community life' (Badigian v. Badigian, 9 N.Y.2d 472, 474, [245 N.E.2d 193] 215 N.Y.S.2d 35, 36, 174 N.E.2d 718, 719 Supra). Because of the changes envisioned by a repudiation of the rule, and because of the unprecedented disposition requested, it was suggested that the Legislature take the initiative in the area.

Seven years have passed since that decision. During that period, there has been a judicial erosion of the intrafamily immunity doctrine for nonwillful torts by courts of sister States. During that same interval, legislative intervention has not been forthcoming. While I agreed with the majority in Badigian that the doctrine should be abrogated by the Legislature, I no longer adhere to that view. As the courts of other States have indicated in abandoning it, the doctrine of intrafamily immunity for nonwillful torts was a court-created rule and, as such, the courts can revoke it....