Guilmette v. Ritayik

• Citation: 334 N.Y.S.2d 223,39 A.D.2d 339
• Parties: Neil S. GUILMETTE, as administrator, etc., Respondent, v. Diane B. RITAYIK et al., Defendants, and Susan A. Guilmette, Appellant.
• Decision Date: 26 June 1972
• Court: New York Supreme Court — Appellate Division

Page 223

334 N.Y.S.2d 223

39 A.D.2d 339

Neil S. GUILMETTE, as administrator, etc., Respondent, v. Diane B. RITAYIK et al., Defendants, and Susan A. Guilmette Appellant.

Supreme Court, Appellate Division, Second Department.

June 26, 1972.

John W. Fuhrman, Smithtown, for appellant.

Siben & Siben, Bay Shore (Bernard M. Rosen, Bay Shore, of counsel), for respondent.

Before RABIN, P.J., and HOPKINS, MARTUSCELLO, LATHAM and SHAPIRO, JJ.

SHAPIRO, Justice.

Nineteen-month-old Robert Guilmette died as a result of injuries which he sustained in an automobile accident on June 29, 1970. He was a passenger in the front seat of an automobile owned by his father which was then operated by his mother. The car collided with a vehicle owned by Diane Ritayik which was being operated by John Ritayik.

Neil Guilmette, Robert's father, who had been appointed administrator of his son's estate, commenced this action to recover damages for wrongful death and conscious pain and suffering, naming as defendants the Ritayiks and his wife, Susan Guilmette. Defendant Susan Guilmette (in practical effect, her insurer) has moved for a dismissal of the complaint and for summary judgment on the ground that, as a distributee of Robert's estate, she may not be sued since a recovery against her would, in effect, permit her to profit by her own negligence. ¹

The question is thus posed whether the abolition of the doctrine of intrafamily tort immunity permits a suit for wrongful death in which a defendant (as a distributee) will benefit by the plaintiff's recovery.

By its decision in Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 the Court of Appeals abrogated the long standing doctrine of intrafamily tort immunity. Prior to that decision this action could not have been maintained against defendant Susan Guilmette, since she would not then have been 'a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued' (EPTL 5--4.1). After that decision, however, if the infant had survived the accident he could have sued his mother to recover damages for the injuries which he had sustained.

The Gelbman case, however, did not consider the effect which the abolition of intrafamily tort immunity would have upon actions for wrongful death in which a person responsible for the death could benefit as a distributee. Gelbman, rather, held that the traditional basis for the invocation of the immunity doctrine--the preservation of family unity--is better served by permitting suit and thereby possibly creating a fund for the benefit of the injured person.

It is to some extent incongruous to use Gelbman, which attempted to remove the family shield benefiting a wrongdoer, as quthority for allowing a benefit to such wrongdoer. However, I believe that logic and the applicable statute (EPTL 5--4.1) compels such a result.

In Gelbman the Court of Appeals emphasized that it was not creating a liability where none existed, but was merely 'permitting recovery, previously denied, after the liability has been established' (p. 439, 297 N.Y.S.2d p. 532, 245 N.E.2d p. 194). The decision, therefore, effected no other substantive changes in the general rules of negligence.

In McKay v. Syracuse R.T. Ry. Co., 208 N.Y. 359, 101 N.E. 885, the plaintiff, as administrator of his wife's estate, sued the defendant for negligently causing her death. The defendant, at the trial, contended that the plaintiff had, by his concurrent negligence, contributed to her death and therefore requested a charge that, if the jury should find that the accident was occasioned by the negligence of the plaintiff or contributed to by his negligence, there could be no recovery in the action. In sustaining the ruling of the trial court that negligence on the part of the plaintiff, the sole beneficiary in the action, would not bar a recovery by him under the death statute (then section 1902 of the Code of Civil Procedure and now EPTL 5--4.1), the Court of Appeals said (pp. 362--364, 101 N.E. p. 886):

'This action is brought under section 1902 of the Code of Civil Procedure for the negligent killing of the plaintiff's intestate, his wife, and the question if fairly presented whether in such an action the plaintiff may recover in case the sole beneficiary, in this case the plaintiff, was himself guilty of negligence which contributed to cause the death of the decedent. The Appellate Divisions in the Third and Fourth Departments have taken opposite views of the question. Lewin v. Lehigh Valley Railroad Company, 52 App.Div. 69, 65 N.Y.S. 49; O'Shea v. Lehigh Valley Railroad Company, 79 App.Div. 254, 79 N.Y.S. 890.

'The material part of said section reads:

"The executor or administrator of a decedent who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued.'

'There can be no doubt that the plaintiff's negligence would not have defeated a recovery by the wife if she had lived. Her cause of action abated upon her death, but the Legislature has substituted a new action and has specified the condition upon which it may be maintained; I.e., the right of the injured person to maintain an...