Latta v. Siefke

• Decision Date: 20 January 1978
• Citation: 401 N.Y.S.2d 937,60 A.D.2d 991
• Parties: Wendy LATTA, an infant under the age of fourteen years by her mother and natural guardian, Gloria Latta, Plaintiff, and Gloria Latta, Appellant, v. Joel R. SIEFKE, Respondent and Third-Party Plaintiff, v. William R. LATTA, Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 937

401 N.Y.S.2d 937

60 A.D.2d 991

Wendy LATTA, an infant under the age of fourteen years by

her mother and natural guardian, Gloria Latta, Plaintiff, and Gloria Latta, Appellant, v. Joel R. SIEFKE, Respondent and Third-Party Plaintiff, v. William R. LATTA, Third-Party Defendant.

Supreme Court, Appellate Division, Fourth Department.

Jan. 20, 1978.

Cox, Barrell & Walsh, Buffalo by James P. Burgio, Buffalo, for appellant Latta.

Mark G. Farrell, Buffalo by John Anderson, Buffalo, for respondent and third-party plaintiff Siefke.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, for plaintiff Wendy Latta.

Before MARSH, P. J., and CARDAMONE, SIMONS, HANCOCK and DENMAN, JJ.

MEMORANDUM:

As a result of an automobile accident the defendant, Joel Siefke, was sued by Gloria Latta and her infant daughter, Wendy, passengers in a vehicle owned and operated by William Latta, third-party defendant. Defendant, Siefke, interposed a counterclaim to plaintiff's complaint seeking indemnity from Gloria Latta for any judgment that might be recovered against him in the infant Latta's claim for her injuries and damages. The counterclaim was based on the mother's failure to fasten her infant daughter's seat belt. Plaintiff moved under CPLR 3211(a)(6) to dismiss this counterclaim. Special Term determined that it was validly interposed and denied the motion. We cannot agree.

The Court of Appeals has held that nonuse of an available seat belt is a factor for the jury's consideration of due care not only to avoid injury to himself, but to mitigate any injury he might incur. The fact that an available seat belt is not used "should be strictly limited to the jury's determination of the plaintiff's damages and should not be considered by the triers of fact in resolving the issue of liability" (Spier v. Barker, 35 N.Y.2d 444, 450, 363 N.Y.S.2d 916, 920, 323 N.E.2d 164, 167; see Pritts v. Walter Lowery Trucking Co., D.C., 400 F.Supp. 867, 871).

The defendant's contention that the infant plaintiff could sue her mother directly is also without merit. While abolishing the defense of intra-family immunity for non-wilful torts (Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192) the Court of Appeals held that a child does not have a legally cognizable claim for damages against his parents for negligent supervision (Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338). The Court reasoned that to permit a counterclaim against a parent...