Nelson v. Garcia

• Decision Date: 15 November 1989
• Docket Number: No. 1,U-D,No. 2,1,2
• Citation: 152 A.D.2d 22,548 N.Y.S.2d 963
• Parties: John C. NELSON, Jr. and Nancy Nelson, Plaintiffs, v. Richard G. GARCIA, Huronrive-It Corporation, Amerford Airways, Inc., Appellants, Raymond E. Goerss, Larry C. Breweur, et al., Defendants, and The Town of Holland, Respondent. Richard GARCIA, Huronrive-It Corporation and Amerford Airways, Inc., Third-Party Plaintiffs-Appellants, v. Gary TILLINGHAST, Holland Volunteer Fire Company, Inc., Town of Holland Fire District, Third-Party Defendants. And Three Other Actions and Third-Party Actions. Appeal
• Court: New York Supreme Court — Appellate Division

Page 963

548 N.Y.S.2d 963

152 A.D.2d 22

John C. NELSON, Jr. and Nancy Nelson, Plaintiffs, v. Richard G. GARCIA, Huron U-Drive-It Corporation, Amerford

Airways, Inc., Appellants,

Raymond E. Goerss, Larry C. Breweur, et al., Defendants,

and

The Town of Holland, Respondent.

Richard GARCIA, Huron U-Drive-It Corporation and Amerford

Airways, Inc., Third-Party Plaintiffs-Appellants, v. Gary TILLINGHAST, Holland Volunteer Fire Company, Inc., Town

of Holland Fire District No. 1., Third-Party Defendants.

And Three Other Actions and Third-Party Actions. Appeal No. 2.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 15, 1989.

O'Shea, Reynolds, Napier, Quinn & Cummings by Kenneth R. Kirby, Buffalo, for appellants Richard G. Garcia, Huron U-Drive-It Corp. and Amerford Airways, Inc.

Smith, Murphy & Schoepperle by Robert J. Whetzle, Buffalo, for respondent.

Before CALLAHAN, J.P., and DENMAN, BOOMER, BALIO and LAWTON, JJ.

DENMAN, Justice:

In these four consolidated actions seeking to recover for personal injuries sustained in a multi-vehicle accident, the court properly granted the motion of the Town of Holland for summary judgment dismissing all claims, cross claims, and third-party claims against it. Those claims seek to impose direct or vicarious liability upon the Town on the theories that it owned the ambulance involved in the accident, that it employed the volunteer fireman who was driving the ambulance, and that it provided the ambulance service. We agree with the court that there is no basis for imposing responsibility upon the Town on any of the theories of liability advanced by appellants.

The court properly determined that the Town is not liable pursuant to Vehicle and Traffic Law § 388, the owners' financial responsibility statute. The statute imposes vicarious liability, which by its very nature cannot be imposed upon the owner unless there is liability on the part of the driver. Thus, the immunity of the driver immunizes the owner against a claim of vicarious liability (see, Kenny v. Bacolo, 61 N.Y.2d 642, 645, 472 N.Y.S.2d 78, 460 N.E.2d 219; Ulysse v. Nelsk Taxi, 135 A.D.2d 528, 530, 522 N.Y.S.2d 162, lv. denied 73 N.Y.2d 702, 536 N.Y.S.2d 743, 533 N.E.2d 673; Sikora v. Keillor, 17 A.D.2d 6, 7-8, 230 N.Y.S.2d 571, affd. 13 N.Y.2d 610, 240 N.Y.S.2d 601, 191 N.E.2d 88). Here, the volunteer fireman who was driving the ambulance has statutory immunity for his acts of ordinary negligence (see, General Municipal Law § 205-b). Consequently, the Town has no vicarious liability as owner of the ambulance (Sikora v. Keillor, supra ).

We reject the contention that the Town is liable under the doctrine of respondeat superior. In pressing that claim, appellants rely on General Municipal Law §§ 50-a, 50-b and 205-b, which provide that a town is liable for the negligence of a town "appointee" while operating a municipally owned vehicle in the discharge of his duties. Those sections do not impose liability on the Town because the ambulance driver was not an appointee of the Town. Analysis of this issue requires an understanding of the distinction between "fire protection districts" and "fire districts". In establishing the former, a town expressly assumes the duty to provide fire protection within such fire protection district. No independent entity is created thereby; the town controls the district's operations; "members" of the district ^* are deemed officers, employees, or appointees of the town; and the town is liable for any negligence on the part of such members, including negligence in the operation of fire trucks or ambulances (see, General Municipal Law §§ 50-a, 50-b, 205-b; Town Law § 184; Not-for-Profit Corporation Law § 1402[e][1]; see generally, Cuddy v. Town of Amsterdam, 62 A.D.2d 119, 403 N.Y.S.2d 590).

In contrast, where a town establishes a fire district, it creates a wholly independent political subdivision whose "members", including its volunteer firemen, are employees of the district and not of the town (Town Law § 174[1][a]; [2]; [7]; § 176[10], [11], [18-a]; § 176-b[1], [2]. Under those statutes, the fire district rather than the town appoints its own members, furnishes fire and ambulance service and is liable for negligence on the part of its members, including their negligent operation of vehicles (see, Knapp v. Union Vale Fire Co., 141 A.D.2d 509, 529 N.Y.S.2d 132). A fire district is empowered to insure itself against liability and may use its independent taxing power to pay claims against it (Town Law § 176[18], [19], [28], [30]. The interplay of those statutes compels the...