Harkness v. Smith
| Decision Date | 06 July 1984 |
| Citation | 478 N.Y.S.2d 239,125 Misc.2d 216 |
| Parties | Warren HARKNESS and Leanne Harkness, Plaintiffs, v. John SMITH, an Infant (Said Name Being Fictitious), Defendant. D. Michael PETERS and Nancy Peters, Plaintiffs, v. John SMITH, an Infant (Said Name Being Fictitious), Defendant. |
| Court | New York Supreme Court |
The question of whether an infant is subject to punitive damages has apparently never been considered in New York. At least there does not appear to be any recorded decision on the point and it would therefore seem that this is a case of first impression.
The issue here is presented by a motion to set aside verdicts against the defendant for punitive damages. The defendant is presently 18 years of age, but at the time of the tortious conduct which brought on these actions he was only 14.
In 1980, a series of burglaries in homes in Pittsford, a suburban town outside of Rochester, were finally solved by the investigation of the Sheriff of Monroe County and the confession of the defendant admitting his responsibility. A few items of jewelry were recovered from his backyard where he had buried them. Much of the stolen property had been sold by him to a "fence", who has since been prosecuted, convicted and sentenced to a term of imprisonment.
The defendant was the paperboy on a route which included the victimized homes. As a result he knew when the residents would be away for vacation and when they would be returning. The burglaries occurred during such vacation periods. In addition, he was friendly with the children of the homeowners and had been inside their homes and shown coin collections which he stole in the burglaries.
The defendant's confession was obtained with the permission of both the defendant's father and the family attorney; no question has been raised as to its legality. Through an arrangement with the Sheriff's deputies investigating the crimes, the defendant, in return for his confession and his cooperation in prosecuting the fence, as well as a promise to accept guidance and counselling, was not required to go through the juvenile court system, nor otherwise prosecuted.
The plaintiffs here are among the burglarized homeowners. They have, so to speak, taken the law into their own hands by bringing these actions, joined by court order, against the defendant to recover for compensatory damages covering the value of their stolen property and for punitive damages.
Punitive damages serve a number of purposes: they punish the defendant for his wrongful conduct; they protect the public against similar acts; they operate to deter the defendant from a repetition of the same conduct; and they serve as an example or warning to others (Reid v. Terwilliger, 116 N.Y. 530, 22 N.E. 1091; 36 N.Y.Jur. Damages, § 173).
Such damages will not be denied merely because the defendant's conduct is criminal, and the same act may be the subject of both a civil action for punitive damages and a criminal prosecution (Colligan v. Fera, 76 Misc.2d 22, 349 N.Y.S.2d 306; see also, Giddings v. Freedley, 128 F. 355, CCA2d).
Surely it is fitting and proper to impose such damages here against a burglar whose depradations, although focusing on a few individuals, have a devastating effect upon an entire neighborhood. Their corrosive and offensive impact upon the fabric of a community are not penumbral, they are woundingly direct. The propriety of awarding punitive damages would seem to be reinforced by the present acceptance of restitution as a sentencing alternative. There is no apparent reason, therefore, why such restitution, in the form of both compensatory and exemplary damages, should not be obtained directly in a civil suit for damages by the victim, acting as his own attorney general in the same way he is encouraged to act in many other civil cases involving quasi-governmental remedies, e.g., anti-trust, truth-in-lending, 42 U.S.C. § 1983 civil rights actions, etc. "In such cases the law uses the suit of a private party as an instrument of public protection, not for the sake of the suitor but for that of the public." (36 N.Y.Jur., Damages, § 175, p. 294).
The only question is whether defendant's infancy at the time these acts were committed bars an award of punitive damages. I held it did not and the jury was permitted to consider, over defendant's objection, an award of punitive damages as well as of compensatory damages. After deducting the small payments received by the plaintiffs from their insurance companies, the jury returned a net verdict for compensatory damages of $1500. and punitive damages of $500. in one case, and net compensatory damages of $7800. and punitive damages of $1000. in the other case.
An infant, even though of tender years, is liable for his own torts (28 N.Y.Jur., Infants, §§ 54-59; 42 Am.Jur.2d Infants, § 141). Age is only a consideration where the infant is so young as to be incapable of malice. "... an infant of quite tender years may be held liable where the only intention necessary to the commission of a tort is the intention to perform the physical act in question, as in trespass to property or to person, such an infant cannot be held liable where malice is the gist of the tort and he is too young to formulate the necessary malicious intention, as in the case of slander or libel." (42 Am.Jur.2d, Infants, § 141, pp. 134-135).
Therefore, a very young child may...
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