Hairston v. Broadwater
| Decision Date | 03 April 1973 |
| Citation | 73 Misc.2d 523,342 N.Y.S.2d 787 |
| Parties | Barbara Jean HAIRSTON, an infant under the age of 14 years by her father and natural guardian, Clayton Hairston and Clayton Hairston, Individually, Plaintiffs, v. James BROADWATER and Claude Broadwater, Defendants. |
| Court | New York Supreme Court |
There seems need for a rationale of two fundamental upheavals worked in New York law by recent and significant high court cases. One allows family members to sue each other for negligence, the other allows one joint tortfeasor to charge another joint tortfeasor for contribution of his apportionate share of responsibility in causing an accident. Taken together, they affect a parent whose child is injured by a third party, under circumstances where the third party argues the parent himself is wholly or partially responsible for the happening, and should therefore bear at least part of the damages.
In light of the ranging authorities and principles required to synthesize the issues implicit in this proceeding, the Court feels it useful to precede its opinion with this topical benchmarking.
A. Gelbman (Intrafamilial Torts) and Dole (Contribution Between Joint Tortfeasors)
B. Recent Flurry of Interpreting Decisions
A. If Contributorily Negligent
B. If a Joint Tortfeasor
A. Holding of Gelbman
B. Reasoning Underlying Gelbman
C. Specific Recognition of Parental Indemnity Possibility
D. Insurance does not Determine Liability
E. Conclusion
A. The Child's Legal Rights
B. The Till
C. Will the Parent Hinder Suit?
. . . and so we begin.
The case here of Clayton Hairston and his eight year old daughter Barbara invokes the problem. Mr. Hairston brought an action for damages on his own behalf and as guardian for Barbara after she was hit in May 1972 by a car owned by Claude, and operated by James, Broadwater. The Broadwaters, in turn, counterclaimed against Mr. Hairston seeking an apportionment between them of the damages, claiming that Mr. Hairston's own parental negligence caused or contributed to the accident. Mr. Hairston moves now to strike that counterclaim, arguing that whatever was his duty to his daughter, 'unknown third parties' cannot interject themselves into parent-child obligations.
There are relatively recent legal changes in New York concerning both intrafamily tort liability and joint tortfeasor contribution.
A. Gelbman (Intrafamilial Torts) and Dole (Contribution Between Joint Tortfeasors)
Once upon a time in New York, parents and children had immunity from each other in suits for negligent injury. But then, in 1969, the Court of Appeals, in Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192, turned over the law and permitted a mother to maintain a suit against her sixteen year old son for damages resulting from his negligent automobile operation. In the Court's own words it was 'abolishing the defense of intrafamily tort immunity'. Id. at 439, 297 N.Y.S.2d at 532, 245 N.E.2d at 194, see, Juszczak v. City of New York, 32 A.D.2d 824, 302 N.Y.S.2d 375.
Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 and Kelly v. Long Island Lighting Co., 31 N.Y.2d 25, 334 N.Y.S.2d 851, 286 N.E.2d 241, also newly arrived decisions (by judicial standards), rule that joint tortfeasors held liable for a plaintiff's injuries are entitled to contribution from each other in proportion to their relative responsibilities.
Putting it all together (another newly arrived expression, this time by semantic standards), the Broadwaters say that if the father was negligent contributing to his daughter's injury, he is a joint tortfeasor with them and he should contribute to the damages in the proportion of his fault, citing Dole. Mr. Hairston staunchly resists, arguing that counterclaim torts of inadequate parental supervision cannot be allowed, even after Gelbman, since they erode family unity, that such a counterclaim may limit the child's recovery, and that harmful insurance implications will follow where he might be without separate counsel to defend his case because of insurance policies which disclaim coverage for intrafamily lawsuits.
B. Recent Flurry of Interpreting Decisions
There is limited but mixed authority in this area. In Sorrentino v. United States, 344 F.Supp. 1308 (E.D.N.Y.1972), under facts almost identical to this case, the Court permitted without qualification the amendment of the automobile owner-driver's answer to include a counterclaim against the claimed negligently supervising parent. This case has been cited without disapproval by the Appellate Division, Second Department. Moreno v. Galdorisi, 39 A.D.2d 450, 452, 336 N.Y.S.2d 646, 648. Yet, other cases speak in terms of requiring 'special circumstances' to be shown before a contribution claim will be sanctioned against the parent of an injured child. Marrero v. Just Cab Co., 71 Misc.2d 474, 336 N.Y.S.2d 301; Fake v. Terminal Hardware, Inc., 73 Misc.2d 39, 341 N.Y.S.2d 272 (Supreme Court, Albany County). And some courts have expressed doubt that strangers to the family mold can claim parental negligence in an action brought on behalf of the child. See, Bilgore v. Rennie, 72 Misc.2d 639, 340 N.Y.S.2d 212; Collazo v. Manhattan and Bronx Surface Transit Operating Auth., 72 Misc.2d 946, 339 N.Y.S.2d 809 (Supreme Court, Bronx County); Kiernan v. Jones, 73 Misc.2d 829, 342 N.Y.S.2d 873 (Supreme Court, Nassau County).
Analytically viewed, a person resisting a parent who sues both on his own behalf And that of his child has two avenues on which to bring parental misconduct to the curtailment of his liability.
A. If Contributorily Negligent
The first avenue runs wholly in the primary lawsuit, and lasts only so long as contributory negligence survives under New York law. Here, the defendants may assert the parent's negligence only to defeat the parent's own action for reimbursement of expenses related to the child's injury. Juszczak v. City of New York, Supra; Miller v. Rankin, 10 A.D.2d 695, 198 N.Y.S.2d 1; Bailey v. Roat, 178 Misc. 870, 36 N.Y.S.2d 465. This defense is implicit in the affirmative action and, since the parent as a negligent plaintiff must show his freedom from contributory negligence in order to recover, it need not be separately pleaded. By statute, the contributory negligence of the parent, however, cannot be attributed to the child in the action brought on his behalf. General Obligations Law § 3--111. This avenue never reaches the child.
B. If a Joint Tortfeasor
The second avenue, running through Dole and Kelly, is paved by the defendant's placement of counterclaim, third-party claim, or cross-claim, and does touch the child. CPLR 3019, 1007. Technically, the courts can Sua sponte deem a cross-claim to be made without formal filing. Stein v. Whitehead, 40 A.D.2d 89, 337 N.Y.S.2d 821. Here, the defendants necessarily argue the parent is a tortfeasor by the parent's own conduct and to the extent the parent jointly causes injury to the child he is liable to contribute to the nonfamilial defendant in his apportionate share of the fault. The parent's tort may come by direct act or failure to act, related in some way to the incident cited in the complaint. Murphy v. Appelli, 273 App.Div. 261, 77 N.Y.S.2d 199. It may therefore include inadequate custodial or supervisory care owed to the child which, when isolated, is a tort against the child. Where this tort is actually spelled out, apportionment between joint tortfeasors follows facilely under Dole. Conceptually viewed, however, the parent's act can instead, or also, be a tort against the defendant, setting up a classic indemnity claim by the defendant against the parent. This might conceivably arise, for instance, in an aggravated situation where a parent directs a tiny tot onto a crowded high speed escalator and the tot is hurt and the operator is claimed liable for inadequate safeguard.
We believe that Gelbman in word and spirit lays to rest the doctrine of intrafamilial tort immunity.
A. Holding of Gelbman
There is apparently some concern afoot that torts between parent and child violate notions of intrafamily immunity which somehow survive Gelbman. The Court believes, however, that the unanimous decision in Gelbman has dispelled any residual common law barrier to ordinary negligence claims between family members. See, Tobin v. Grossman, 24 N.Y.2d 609, 613, 301 N.Y.S.2d 554, 556, 249 N.E.2d 419, 420. Strictly speaking, Gelbman permitted a parent to sue for damages claimed resulting from his child's negligence. But, the Court of Appeals specifically treats the reverse situation of child suing parent, as well, and has effectively paved the way for the parent sharing in payment of the child's total damages to the extent of his relative fault. Gelbman v. Gelbman, Supra, 23 N.Y.2d at 437--438, 297 N.Y.S.2d at 531, 245 N.E.2d 193; see, Guilmette v. Ritayik, 39 A.D.2d 339; Howell v. Perri, 60 Misc.2d 871, 304 N.Y.S.2d 156; Zelby v. Omansky, 61 Misc.2d 199, 304 N.Y.S.2d 899. Indeed, the parent, under Gelbman, can be liable to the child the whole way, with or without co-defendants or outside claimants, dependent upon the particular conduct involved.
B. Reasoning Underlying Gelbman
The ghost of insurance stalks the...
To continue reading
Request your trial
-
Nocktonick v. Nocktonick, 50495
... ... New Hampshire Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966); ... New York Hairston v. Broadwater, 73 Misc.2d 523, 342 N.Y.S.2d 787 (1973); ... Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 (1969); ... ...
-
Lastowski v. Norge Coin-O-Matic, Inc.
... ... United States, D.C., 344 F.Supp. 1308; Hairston v. Broadwater, 73 Misc.2d 523, 342 N.Y.S.2d 787; Meade v. Roberts, 71 Misc.2d 120, 335 N.Y.S.2d 349). In states in which the defense of parental ... ...
-
Ryan v. Fahey
... ... Weiss, 74 Misc.2d 619, 344 N.Y.S.2d 525; Kiernan v. Jones, 73 Misc.2d 829, 342 N.Y.S.2d 873; Hairston v. Broadwater, 73 Misc.2d 523, 342 N.Y.S.2d 787; Fake v. Terminal Hardware, Inc., 73 Misc.2d 39, 341 N.Y.S.2d 272; Collazo v. Manhattan and Bronx ... ...
-
Searles v. Dardani
... ... Relyea, 73 Misc.2d 1098, 343 N.Y.S.2d 537; accord: Hairston v. Broadwater, 73 Misc.2d 523, 342 N.Y.S.2d 787; Holodook v. Spencer, 73 Misc.2d 181, 340 N.Y.S.2d 311, Supra) ... Another line of ... ...