Kemp v. Rockland Leasing, Inc.

• Decision Date: 03 November 1966
• Citation: 274 N.Y.S.2d 952,51 Misc.2d 1073
• Parties: Michelle S. KEMP, an infant over the age of 14 years, by her natural guardian and father, Gilbert Kemp, and Gilbert Kemp, Plaintiffs, v. ROCKLAND LEASING, INC., Samuel Solomon and Bernice Solomon, Defendants.
• Court: New York Supreme Court

Page 952

274 N.Y.S.2d 952

51 Misc.2d 1073

Michelle S. KEMP, an infant over the age of 14 years, by her

natural guardian and father, Gilbert Kemp, and Gilbert Kemp, Plaintiffs, v. ROCKLAND LEASING, INC., Samuel Solomon and Bernice Solomon,

Defendants.

Supreme Court, Special Term, Queens County, Part I.

Nov. 3, 1966.

George Ehrlich, New York City, for plaintiffs.

Gottlieb & Hahn, Huntington Station, for defendant Rockland Leasing, Inc.

MEMORANDUM

HAROLD J. CRAWFORD, Justice.

Fundamental questions concerning the scope of the parent-child immunity doctrine are posed on this motion by defendant Rockland Leasing, Inc. (hereinafter: Rockland), to dismiss the complaint for insufficiency pursuant to CPLR 3211(a)7.

This action is by the unemancipated infant plaintiff Michelle to recover damages for injuries sustained while a passenger in a motor vehicle owned by Rockland, which was operated by Muriel Kemp, the plaintiff's mother, and collided with a motor vehicle owned and operated by the defendants Samuel and Bernice Solomon. Plaintiff alleges that the motor vehicle owned by Rockland 'was being managed, operated and controlled by Muriel Kemp with the knowledge, permission and consent, express or implied of' said defendant.

The theory of liability urged by plaintiff is predicated on section 388 of the Vehicle and Traffic Law which attributes to the owner of a motor vehicle the negligence of a person 'using or operating the same with the permission, express or implied, of such owner'. Rockland contends that it is not liable under this statute because its liability is derived from the infant plaintiff's mother and since the infant plaintiff cannot recover from her mother pursuant to the rule that an unemancipated child cannot maintain an action against his parent for negligence (Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551), Rockland is also exempt from liability, citing Gullen v. Havens (an unreported Civil Court case decided on November 29, 1965) and Sikora v. Keillor, 17 A.D.2d 6, 230 N.Y.S.2d 571, affd. 13 N.Y.2d 610, 240 N.Y.S.2d 601, 191 N.E.2d 88.

In Gullen, the facts were similar to those at bar and the court, on the authority of Sikora, held that the immunity of a child to sue its parent barred recovery in a suit by the child against the owner of a motor vehicle operated by the parent.

Sikora was an action to recover damages for personal injuries arising from the alleged negligent operation of an automobile owned by one defendant and operated by a volunteer fireman in the performance of his duties. Section 205--b of the General Municipal Law provides an exemption to volunteer firemen from civil liability for acts done in the course of their duties, except for wilful negligence or malfeasance. As to the owner of the car, the Appellate Division, Second Department, held (pp. 7--8, 230 N.Y.S.2d p. 573) that since the volunteer fireman was exempt from liability, the owner was also exempt since 'the underlying purpose of the statutory exemption, viz., to encourage and facilitate volunteer firemen's service, will not be accomplished if the immunity from liability does not extend to the owner of the vehicle which was used by the fireman in the performance of his duty.'

This court is of the opinion that the two above discussed decisions do not constitute binding authority since in Sikora, supra, the court based its decision on the public policy underlying the firemen's exemption. Here a different exemption founded on different policy considerations is involved. In the absence of binding authority, the court seeks guidance in approaching this novel question by looking to settled rules of construction, cases in analogous areas of the law and, most importantly, to considerations of public policy.

In construing the scope of section 388 of the Vehicle and Traffic Law, this court is mindful of the rule that 'The Legislature may not be presumed to make any innovation upon the common law further than is required by the mischief to be remedied. Dean v. Metropolitan Elevated R. Co., 119 N.Y. 540, 547, 23 N.E. 1054.' Psota v. Long Island R. Co., 246 N.Y. 388, p. 393, 159 N.E. 180, p. 181, 62 A.L.R. 1163. In construing the applicability of the parent-child immunity, this court is mindful of the statement of Judge Cardozo in Schubert v. August Schubert Wagon Co., 249 N.Y. 253, at page 256, 164 N.E. 42, 64 A.L.R. 293, where the Judge, in discussing the scope of the husband-wife immunity, stated:

'No doubt one can gather pronouncements from treatise or decision which, taken from their setting, give color of support for an exemption even wider. They have no such effect when related to context and occasion. Few formulas are meant to serve as universals. A progeny deformed or vicious may be known as illegitimate. Here as elsewhere we are to be on our guard against the perils that are latent in 'a jurisprudence of conceptions.' Hynes v. New York Cent. R. (R.) Co., 231 N.Y. 229, 235, 131 N.E. 898, 900, (17 A.L.R. 803)).'

In Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718, Mr. Justice Fuld, in his dissenting opinion, discusses several lines of cases in which the court dealt with the problem of the right of a third person to assert the parent-child immunity as a defense. He stated at page 477, 215 N.Y.S.2d at page 39, 174 N.E.2d at page 721:

'In addition, a child may actually, albeit indirectly, obtain redress from his parent for personal injuries resulting from an automobile accident if the child can find and sue a third person who in turn transfers his liability to the parent. A common case of this sort is one in which the father inflicts the injury while driving a vehicle in the course of his employment. The child recovers from his father's employer and thereupon the latter obtains indemnity from the father in the full amount of the child's recovery. See Chase v. New Haven Waste Material Corp., 111 Conn. 377, 150 A. 107, 68 A.L.R. 1497; Briggs v. City of Philadelphia, 112 Pa.Super. 50, 170 A. 871; cf. Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 257, 164 N.E. 42, 43, 64 A.L.R. 293 (wife permitted recovery against husband's employer).

And, finally, an infant may sue his parent directly for personal injuries caused by the father's careless operation of a car, provided only that it was being used in connection with the father's business. (See Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055; Signs v. Signs, 156 Ohio St. 566, 103 N.E.2d 743, supra; Worrell v. Worrell, 174 Va. 11, 4 S.E.2d 343; Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149; Lusk v. Lusk, 113 W.Va. 17, 166 S.E. 538.)'

Schubert, supra, was an action by plaintiff to recover for personal injuries sustained when she was struck by defendant's automobile which was allegedly negligently driven by plaintiff's husband while in the service of the defendant. The court held that the disability of the wife or husband to maintain an action abainst the other for injuries to the person was not a disability to maintain a like action against the other's principal or master. The court stated, 249 N.Y. at pages 256--257, 164 N.E. at page 43:

'The defendant, to make out a defense, is thus driven to maintain that the act, however negligent, was none the less lawful because committed by a husband upon the person of his wife. This is to pervert the meaning and effect of the disability that has its origin in marital identity. A trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act, though the law exempts the husband from liability for the damage. Others may not hide behind the skirts of his immunity.'

Similarly in Sullivan v. Christiensen, Sup., 191 N.Y.S.2d 625, a corporate defendant pleaded as a separate defense that the driver of its car, for whose negligence it would be required to respond, was the father of the infant plaintiff and therefore plaintiff could only recover if it showed wilful or wanton conduct. The court granted plaintiff's motion to strike this defense and stated at page 626:

'Those cases make clear that such a defense is personal to the father and that the master (corporation) is 'under a distinct and independent liability' (249 N.Y. 253, 164 N.E. (42,) 43) and may be held even though the servant (father) has a personal defense. Nor is it relevant that the corporation may, if held liable, have a right to indemnification by the father, for the father's liability for such indemnity is not to his son and does not violate the policy behind the rule of parental immunity. Schubert v. August Schubert Wagon Co., supra; see Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567; Rozell v. Rozell, 281 N.Y. 106, 22 N.E.2d 254, 123 A.L.R. 1015. Further, insurance coverage is now required, and that coverage protects both the corporation and the parent-employee.'

The applicability of the rules laid down in the above-cited cases is not altogether clear. In these cases, the court was dealing with liability based on the doctrine of Respondeat superior, whereas in the present case the liability is predicated on the statute. The nature of the liability created by section 388 has been discussed at length by the Court of Appeals. In Psota v. Long Island R.R. Co., 246 N.Y. 388, 393, 159 N.E. 180, 181, 62 A.L.R. 1163, the court stated that a person who borrowed a car was

'no longer a stranger to the owner, but became to this extent the owner's agent. The owner assumed this liability under the law and...