McDaniel v. Clarkstown Cent. School Dist. No. 1

• Decision Date: 04 November 1985
• Citation: 110 A.D.2d 349,494 N.Y.S.2d 885
• Parties: , 28 Ed. Law Rep. 862 Robert O. McDANIEL, etc., Plaintiff-Respondent, v. CLARKSTOWN CENTRAL SCHOOL DISTRICT NO. 1, et al., Appellants, et al., Defendant, World Wide Volkswagen, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 885

494 N.Y.S.2d 885

110 A.D.2d 349, 28 Ed. Law Rep. 862

Robert O. McDANIEL, etc., Plaintiff-Respondent, v. CLARKSTOWN CENTRAL SCHOOL DISTRICT NO. 1, et al Appellants, et al., Defendant World Wide Volkswagen, Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 4, 1985.

MacCartney, MacCartney & MacCartney, Nyack (Harold Y. McCartney, Jr., of counsel), for appellant Clarkstown Cent. School Dist. No. 1.

Herzfeld & Rubin, P.C., New York City (David B. Hamm, of counsel), for appellants Volkswagen of America, Inc. and Volkswagenwerk, A.G.

Lipsig, Sullivan & Liapakis, P.C., New York City (Elise Hogouel Langsam, of counsel), for plaintiff-respondent.

Before MOLLEN, P.J., and MANGANO, WEINSTEIN and KUNZEMAN, JJ.

PER CURIAM.

This is an action to recover damages for personal injuries and wrongful death. The facts of this case are set forth in more detail in the decision of this court dated May 6, 1985 (McDaniel v. Clarkstown Central School Dist. No. 1, 111 A.D.2d 151, 488 N.Y.S.2d 783). For the purposes of this motion only, it is not disputed that the court correctly found that plaintiff's decedent, who was injured in 1972, and who subsequently died, allegedly as a result of those injuries, was contributorily negligent as a matter of law. This court also held that the plaintiff's first three causes of action (two separate claims for decedent's personal injuries and one derivative claim for loss of services) accrued at the time of the accident in 1972 and, accordingly, were governed by the doctrine of contributory negligence, which applies to causes of action which accrued prior to September 1, 1975 (CPLR 1413). The appellants were therefore held to be entitled to summary judgment as to those three causes of action. However, the court also held that the plaintiff's fourth cause of action to recover damages for wrongful death accrued at the time of decedent's death in 1979, so that the contributory negligence of the decedent was not a bar to recovery on that claim. Accordingly, the appellants' motions for summary judgment were denied as to the plaintiff's wrongful death cause of action, and it is this holding which we are now asked to reconsider.

The movants contend that it is a precondition to plaintiff's recovery for wrongful death that, at the time of her death, the decedent must have had a right to recover damages for personal injuries (see, e.g., Prink v. Rockefeller Center, 48 N.Y.2d 309, 315-316, 422 N.Y.S.2d 911, 398 N.E.2d 517). Thus, the movants argue that since plaintiff's decedent could not, at the time of her death in 1979, recover for her personal injuries on account of her contributory negligence, the plaintiff is now barred from recovery for wrongful death.

In opposition, plaintiff argues that dismissal of his wrongful death cause of action would be in direct contravention of the terms of CPLR 1411, which provides that, in wrongful death causes of action which accrue after September 1, 1975 (CPLR 1413) "the culpable conduct attributable to the * * * decedent, including contributory negligence * * * shall not bar recovery". We are persuaded that the movants' interpretation of New York's wrongful death statute is incorrect, and that, accordingly, the plaintiff should prevail.

It is of paramount importance to note, at the outset, that a cause of action to recover damages for wrongful death is completely distinct from a cause of action based on personal injuries which survives the death of the injured party. Neither of these actions was recognized under the common law of England. The traditional rules were (1) that the dependents of a person killed as the result of a tort-feasor's wrongful conduct could not recover compensation for their loss of the victim's financial support (Baker v. Bolton [1808] 1 Camp. 493), and (2) that the victim's right to recover money damages for his own pain and suffering was extinguished with his death (Higgins v. Butcher [1607] Yelv. 89).

In New York, as in most jurisdictions, these restrictive rules have been ameliorated by statute (see, generally, Prosser & Keeton, Torts, p. 942 [5th ed.] ). First, the survivors of a decedent were allowed to recover for pecuniary loss with the enactment of a wrongful death statute (L.1847, ch. 450) patterned after the landmark English law commonly known as Lord Campbell's Act (9 & 10 Vict., ch. 93, § 1; see, Grant v. Guidotti, 66 A.D.2d 545, 552-553, 414 N.Y.S.2d 171, affd. 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288). While under this statute, the dependents of a decedent could recover for financial loss resulting from the extinguishment of the decedent's earning capacity (see, Holmes v. City of New York, 269 App.Div. 95, 98, 54 N.Y.S.2d 289, affd. 295 N.Y. 615, 64 N.E.2d 449), the conscious pain and suffering experienced by the decedent himself prior to his demise remained an injury for which there was no redress available. Then, in 1935, this inequity was remedied in this State by the enactment of what is commonly referred to as a "survival" statute (L.1935, ch. 795). The current version of the survival statute (EPTL 11-3.2[b] ) provides, in part, that "no cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed".

These two causes of action--the surviving personal injury action and the wrongful death cause of action--are different in many respects. The two causes of actions exist in order to protect the rights of different classes of persons, and the measure of damages in each action is entirely different. In contrast to an existing action, which survives the injured party's death, a wrongful death cause of action "is not a simple devolution of a cause of action which the deceased would have had * * * but * * * is an entirely new cause of action" (Whitford v. Panama R.R. Co., 23 N.Y. 465, 470). This is demonstrated "by the nature of the damages recoverable and the persons for [whom] [those] benefit[s] * * * are sought. A wrongful death [cause of] action is brought not on behalf of the decedent's estate, but rather on behalf of the decedent's distributees (EPTL 5-4.1) and the damages recoverable are not in compensation for the injury sustained by the decedent, but rather for the injuries suffered by the distributees as a result of the decedent's death (EPTL 5-4.3)" (George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 176, 417 N.Y.S.2d 231, 390 N.E.2d 1156; see also,...