Maidman v. Stagg

• Decision Date: 10 August 1981
• Parties: Edith MAIDMAN, as Temporary Administratrix et al., Respondents, v. Joann STAGG, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 711

441 N.Y.S.2d 711

82 A.D.2d 299

Edith MAIDMAN, as Temporary Administratrix et al., Respondents, v. Joann STAGG, Appellant.

Supreme Court, Appellate Division, Second Department.

Aug. 10, 1981.

Morris, Duffy, Ivone & Jensen, New York City (Henry J. Boitel, New York City, of counsel), for appellant.

Emanuel Thebner, White Plains, for respondents.

Before ADMIANI, J. P., and TITONE, MANGANO and RABIN, JJ.

RABIN, Justice.

The instant action arises from a motor vehicle accident which occurred on June 7, 1978, when Irving Maidman, who was crossing a street in Nyack, New York, was struck by an automobile driven by the defendant. Irving Maidman sought damages for personal injuries; his wife, Edith Maidman, sought damages for loss of consortium. In the source of the trial, Irving Maidman died, apparently of causes unrelated to the accident (Edith was appointed as temporary administratrix of the estate). The jury returned a verdict in favor of the plaintiffs. It found that 75% of the injuries sustained by Irving Maidman was attributable to his own negligence; the remaining 25% to the defendant's negligence. Pursuant to the comparative negligence statute (CPLR art. 14-A), the jury awarded the estate of Irving Maidman, as plaintiff, the sum of $30,000, representing 25% of $120,000, which it assessed as Irving Maidman's total damages. In addition, the jury awarded Edith Maidman $20,000 on her consortium claim. The record does not reveal how the $20,000 figure was arrived at. After the verdict was returned, the court denied the defendant's request that the jury be asked whether its consortium verdict reflected the comparative negligence of Irving Maidman. The defendant appeals from the judgment entered upon the jury verdict.

This appeal raises the question of whether the damages awarded Edith Maidman, personally, should have diminished in the proportion that her husband's injuries were attributable to his own negligence. The defendant contends that the consortium recovery was subject to the comparative negligence defense. The plaintiffs, on the other hand, argue that the consortium claim was totally independent of Irving Maidman's claim for damages, and would not be affected by his negligence. Before we address the merits of the controversy, a brief discussion of the nature of the loss of consortium action is in order.

The modern action for loss of consortium is derived from the early action to recover, in trespass or case, for 'beating a man's wife' (3 Blackstone's Comm., p. 140; 1 Harper & James, The Law of Torts, p. 637). The action was distinct from the tort against the wife, in her own right, which, at common law, could be remedied only through a joint action of husband and wife (see Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 17). Pursuant to statutes enacted in the nineteenth century (see L.1860, ch. 90; L.1890, ch. 51; see, also, General Obligations Law, § 3-313), married women became entitled to sue in their own right. Early cases recognized, however, that notwithstanding a woman's right to recover for own injuries, her husband retained the right to sue separately for the loss of his wife's services (Filer v. New York Central R.R. Co., 49 N.Y. 47), and consortium (Butler v. Manhattan Railway Co., 143 N.Y. 417, 38 N.E. 454), and for medical expenses accrued (Robison v. Lockridge, 230 App.Div. 389, 244 N.Y.S. 663) on account of her injuries. Thus, in Butler v. Manhattan Railway Co., supra the Court of Appeals stated, 143 N.Y. p. 420, 38 N.E. 454:

'wife has her own action for her physical injury, and for the pain and suffering to which she has been or will be subjected. The husband's action is for the consequences affecting his estate and for depriving him of the aid, society and companionship of his wife, which, except for the wrong, he might reasonably expect to enjoy.'

In Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239

N.E.2d 897, the Court of Appeals held that a wife could recover for the loss of her husband's consortium. In so concluding, the court rejected arguments that the consortium action was a 'fossil from an earlier era' (p. 501, 293 N.Y.S.2d 305, 239 N.E.2d 897) and permitted the recovery of 'sentimental' or 'parasitic' (p. 503, 293 N.Y.S.2d 305, 239 N.E.2d 897) damages. The court stated (pp. 502-503, 293 N.Y.S.2d 305, 239 N.E.2d 897) that interests sought to be protected by the consortium action were 'personal to the wife', and embraced 'such elements as love, companionship, affection, society, sexual relations, solace and more'.

The relationship between the consortium action and the principal injury action has been considered in both pre and post Millington decisions. It has been held that consortium claims, like actions brought by parents to recover for loss of their children's services, are derivative; plaintiff's right of recovery for loss of consortium must be tested against the injured spouse's right to recover personally for his own injuries (Balestero Prudential Ins. Co., 283 App.Div. 794, 128 N.Y.S.2d 295; Leo v. Reile, 11 A.D.2d 1083, 206 N.Y.S.2d 465).

Recently, in Liff v. Schildkrout, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288, the Court of Appeals noted the derivative character of the consortium action concluding that there could be no claim for loss of consortium predicated upon the death of the injured spouse. The court stated (pp. 632-633, 427 N.Y.S.2d 746, 404 N.E.2d 1288).

'spouse's cause of action for loss of consortium in the common law independent of the injured spouse's right to maintain an action for injuries sustained. (See Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 507-508, 293 N.Y.S.2d 305, 239 N.E.2d 897; Green v. Hudson Riv. R.R. Co., 28 Barb. 9, supra; Sorensen v. Balaban, 11 App.Div. 164, 165, 42 N.Y.S. 654, supra). In this regard, we adopt the reasoning set forth in Osborn v. Kelley, 61 A.D.2d 367, 370, 402 N.Y.S.2d 463, supra 'that insofar as plaintiff is attempting to recover for loss of consortium for the period prior to decedent's death, a cause of action is stated. (Hentze v. Curry Chevrolet Sales & Serv., 46 A.D.2d 800, 362 N.Y.S.2d 1016.) Such a cause of action, however, is a derivation one (cf. Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897). The wrongful death statute created a new cause of action based not upon damage to the estate of the deceased because of death, but rather for the pecuniary injury to the surviving spouse and next of kin of the decedent (Greco v. Kresge Co., 277 N.Y. 26, 32, 12 N.E.2d 557). Since a decedent has no cause of action to recover damages for his death (EPTL 11-3.3), plaintiff has no derivative cause of action to recover for loss of consortium due to decedent's death.''

As a consequence of the derivative character of the consortium action, it was held, in Maxson v. Tomek, 244 App.Div. 604, 280 N.Y.S. 319, a case decided prior to the enactment of the comparative negligence statute, that contributory negligence of the injured spouse stood as a complete bar to consortium recovery (see also, Reilly v. Rawleigh, 245 App.Div. 190, 281 N.Y.S. 366). The Maxson rule is in accord with the position of the large majority of courts in contributory negligence jurisdictions (see Chance v. Lawry's Inc., 58 Cal.2d 368, 24 Cal.Rptr. 209, 374 P.2d 185; Pioneer Constr. Co. v. Bergeron, 170 Colo. 474, 462 P.2d 589; Mueller v. Sangamo Constr. Co., 61 Ill.2d 441, 338 N.E.2d 1 Thibeault v. Poole 283 Mass. 480, 186 N.E. 632; Peters v. Bodin, 242 Minn. 489, 65 N.W.2d 917; Huff v. Trowbridge, 439 S.W.2d 493 Elmore v. Illinois R.R. Co., 301 S.W.2d 44 Ross v. Cuthbert, 239 Or. 429, 397 P.2d 529; McKee v. Neilson, 444 P.2d 194 Elser v. Union Paving Co., 167 Pa.Super. 62, 74 A.2d 529 Desjourdy v. Mesrobian, 52 R.I. 146, 158 A. 719; contra, Handeland v. Brown, 216 N.W.2d 574 It is also consistent with the Restatement of Torts 2d, which provides in section 494 that 'plaintiff is barred from recovery for an invasion of his legally protected interest in the health or life of a third person which results from the harm or death of such third person, if the negligence of such third person would have barred his own recovery.'

With New York's adoption of comparative negligence, the contributory negligence of the claiming party no longer stands as a complete bar to recovery. The new scheme of comparative negligence is set forth in CPLR 1411:

' § 1411. Damages recoverable when contributory negligence or assumption of risk is established.

'In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.'

The effect of the comparative negligence law on derivative claims was considered by the Court of Claims in Meyer v. State of New York, 92 Misc.2d 996, 403 N.Y.S.2d 420. Douglas Meyer, a State University student was injured when he fell off a foot bridge on the Stony Brook campus. He commenced an action against the State for personal injuries sustained; his father sued derivatively for medical expenses and loss of services. The court, as trier of fact, adjudged the State 50% liable for the student's injuries, the remaining 50% being chargeable to Meyer's own culpable conduct. While finding that the claim for loss of services had not been proved, the court held that the father could recover for 50% of the medical expenses. In reaching this conclusion, the court noted that derivative actions were considered to be 'personal injury' actions (Bailey v. Roat, 178 Misc. 870, 36 N.Y.S.2d 465; Constantinides v. Manhattan Tr. Co., 264 App.Div. 147, 34 N.Y.S.2d 600), and therefore included...