Gelbman v. Gelbman

• Decision Date: 09 January 1969
• Citation: 297 N.Y.S.2d 529,23 N.Y.2d 434,245 N.E.2d 192
• Parties: , 245 N.E.2d 192 Adele GELBMAN, Appellant, v. James D. GELBMAN, Respondent.
• Court: New York Court of Appeals Court of Appeals

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.

David C. Gilberg and Michael H. Gilberg, Mount Vernon, for appellant.

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 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 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, 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. The inactivity of the Legislature since the time of our decision in Badigian illustrates the fact that the rule will be changed, if at all, by a decision of this court.

It is now apparent that the Sorrentino decision can again be reaffirmed only if we conclude that the doctrine is essential for the purpose of preserving family unity. However, the invocation of that argument is not persuasive, as it would require us to conclude that family unity is promoted when a parent is prohibited from suing a child. It seems obvious that family unity can only be preserved in this case by permitting the present action. As one commentator noted, 'If the action of the parent against the child is viewed as a manifestation of the parent's right to discipline and punish his child' (Note, 33 St. John's L.Rev. 310, 319) then such an action would be a proper exercise of parental authority, which authority should not be impaired by the doctrine of intrafamily tort immunity.

A more difficult but not insoluble question is presented when the child is suing his parent. However, as Judge FULD stated in his dissenting opinion in Badigian, 'A rule which so incongruously shields conceded wrongdoing bears a heavy burden of justification' (9 N.Y.2d 472, 475, 215 N.Y.S.2d 35, 38, 174 N.E.2d 718, 721, Supra). Rather than repeat the convincing arguments advanced by Judge FULD in his comprehensive dissent in Badigian, I would merely summarize the many points advanced therein for the abolition of the immunity rule.

First, the doctrine does not apply if the child is of legal age (9 N.Y.2d, p. 476, 215 N.Y.S.2d, p. 39, 174 N.E.2d, p. 721). Moreover, the tolling provisions of the Civil Practice...