Rakaric v. Croation Cultural Club

• Decision Date: 11 August 1980
• Citation: 430 N.Y.S.2d 829,76 A.D.2d 619
• Parties: Ilija RAKARIC, an infant over the age of fourteen years, by his father and natural guardian, Ivan Rakaric, and Ivan Rakaric, Plaintiffs-Appellants, v. The CROATION CULTURAL CLUB "Cardinal Stepinac Organization", Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 829

430 N.Y.S.2d 829

76 A.D.2d 619

Ilija RAKARIC, an infant over the age of fourteen years, by his father and natural guardian, Ivan Rakaric, and Ivan Rakaric, Plaintiffs-Appellants, v. The CROATION CULTURAL CLUB "Cardinal Stepinac Organization" Defendant-Respondent.

Supreme Court, Appellate Division, Second Department.

Aug. 11, 1980.

Mokotoff & Mondshine, Mineola (Michael Rosoff and Milton M. Mokotoff, Mineola, of counsel), for plaintiffs-appellants.

Charles Fischer, New York City (Henry Ethan Sirotko, New York City, on the brief), for defendant-respondent.

GIBBONS, Justice.

This action was instituted to recover damages for personal injuries sustained by the infant plaintiff, Ilija Rakaric, a New York resident then 15 years of age, and for derivative damages by his father, Ivan Rakaric, against the defendant, The Croation Cultural Club "Cardinal Stepinac Organization", a New Jersey Corporation, organized under the laws of New Jersey. The accident occurred on August 11, 1973 upon certain unimproved real property owned by the said defendant and located at Boonton, New Jersey, where the infant plaintiff was injured by a chain saw while engaged as a volunteer in clearing the property.

In its answer, the defendant alleges, as a complete affirmative defense to the action, that, pursuant to section 2A:53A-7 of the New Jersey Revised Statutes, it is immune from liability for negligence due to its status as a nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes.

The question presented for resolution on this appeal is whether, under the facts and circumstances of this case, section 2A:53A-7 of the New Jersey Revised Statutes, which confers immunity from liability for negligence upon a nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes, shall be applied in favor of the defendant under the rule of lex loci delicti, or whether, as the plaintiffs contend, the affirmative defense asserting such immunity contained in the defendant's answer should be dismissed as being legally insufficient and without merit, under CPLR 3211 (subd. (b)).

The Croation Cultural Club "Cardinal Stepinac Organization" was organized under the laws of the State of New York in 1971, with its office address at 502 W. 41st Street, New York City, and the defendant corporation, bearing the same name, was organized under the laws of the State of New Jersey in 1973, with its registered office address as 416 39th Street, Union City, New Jersey, c/o John J. Munro, an attorney.

These corporations function in close association with, and in furtherance of the religious and beneficent purposes of, Saint Cyril's Church, which is located at 502 W. 41st Street, New York City. Father Mladen Cuvalo is the pastor of the church and a member of the board of directors of both corporations. He resides at 502 West 41st Street, New York City. The land upon which the accident occurred consists of undeveloped acreage in Boonton, New Jersey, which the defendant corporation acquired in May, 1973 for the purpose of developing for sports and recreational use.

Many members of the Croation Cultural Club "Cardinal Stepinac Organization" were also worshippers at Saint Cyril's Church. The plaintiff Ilija Rakaric (hereafter plaintiff), and his family worshipped at the church for three years, and, on some occasions, he attended defendant's cultural center in New York City.

In its effort to clear the New Jersey land, the volunteer services of the members of the parish were sought. Announcements and solicitations for such volunteers were made in the church bulletin and by radio broadcasts on Saturdays and Mondays over radio station WHBI. Such announcements were made as early as June, 1973 in which the project was publicized and volunteers were invited to assist in clearing the property. Travel instructions from New York to the site were given and for those who had no cars, transportation would be furnished by the pastor.

The plaintiff, at the time of the accident, resided with his parents in Queens County, New York, and was a student at the Aviation High School in New York. In response to the call for volunteers, he left his home by train and met Father Cuvalo at 50th Street, Manhattan, where he got into a limousine and was driven with several other volunteers to Boonton, New Jersey, by the pastor. The party arrived at about 9:30 A.M. Tools, including three chain saws which were furnished by the defendant, were distributed to the workers. One of the chain saws was handed to a Mr. Saric, a family friend of the plaintiff who resided in Queens County, New York, and who had also volunteered to work and had traveled to the 50th Street meeting place with the plaintiff. While Mr. Saric was in the process of cutting down a tree, the chain saw came in contact with the plaintiff and caused injury to his leg.

Heretofore, the courts of New York had inflexibly applied the doctrine of lex loci delicti in determining that the law of the situs be applied in all tort actions with multistate contacts (McDonald v. Mallory, 77 N.Y. 546; Poplar v. Bourjois, Inc., 298 N.Y. 62, 80 N.E.2d 334).

The inappropriateness of this rigid approach to the resolution of a choice of law problem based on the law of the situs, under certain circumstances, was first recognized with respect to the related doctrine of lex loci contractu. In Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E.2d 424, the court determined that the law to be applied in contractual disputes having interstate connections would be based on the "center of gravity" or "grouping of contacts" theory. This rule was followed in Auten v. Auten 308 N.Y. 155, 161, 124 N.E.2d 99, 102, where the court held that "(a)lthough this 'grouping of contacts' theory may, perhaps, afford less certainty and predictability than the rigid general rules * * * the merit of its approach is that it gives to the place 'having the most interest in the problem' paramount control over the legal issues arising out of a particular factual context."

The first departure from the rule of lex loci delicti appears to have been declared in Kilberg v. Northeast Airlines 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526, which involved an airplane accident in Massachusetts in which the plaintiff's intestate was killed. In refusing to apply the Massachusetts statutory limit of $15,000 for wrongful death, the New York court held (p. 39, 211 N.Y.S.2d p. 135, 172 N.E.2d p. 528) that "(t)he place of injury (is) entirely fortuitous. Our courts should if possible provide protection for our own State's people against unfair and anachronistic treatment of the lawsuits which result from these disasters." The court permitted a recovery for wrongful death under the Massachusetts statute but declined, on public policy grounds, to comply with its monetary limitation.

In Babcock v. Jackson 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, the Court of Appeals considered the applicability of the Ontario statute barring recovery of damages for ordinary injuries. In that action, which arose out of an accident in the province of Ontario, Canada, by a plaintiff-passenger of an automobile bearing New York registration, against the operator, both parties being residents of the State of New York, Judge FULD, after tracing the development of the law, held (pp. 481-482, 240 N.Y.S.2d p. 749, 191 N.E.2d p. 285):

"The 'center of gravity' or 'grouping of contacts' doctrine adopted by this court in conflicts cases involving contracts impresses us as likewise affording the appropriate approach for accommodating the competing interest in tort cases with multi-State contacts. Justice, fairness and 'the best practical result' (Swift & Co. v. Bankers Trust Co., 280 N.Y. 135, 141, (19 N.E.2d 992, 995,) supra) may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation. The merit of such a rule is that 'it gives to the place "having the most interest in the problem" paramount control over the legal issues arising out of a particular factual context' and thereby allows the forum to apply 'the policy of the jurisdiction "most intimately concerned with the outcome of the particular litigation. " ' (Auten v. Auten, 308 N.Y. 155, 161 (124 N.E.2d 99, 102,) supra)." (Emphasis added.)

In the process of the evolution of the "center of gravity" or "grouping of contacts" doctrine enunciated by Babcock, the Court of Appeals, in Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394, held, with respect to an action involving an accident in the province of Ontario which had a guest statute in force that, when the guest passenger and host driver were both residents of this State, and the car was registered and insured in this State in order to prevent the onerous effect of the Ontario law which would prevent a recovery by the plaintiff resident of New York, the law of New York applied and not the law of Ontario, the place of the accident.

A subsequent case, Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454, presented the court with a factual situation where the defendant's intestate, a resident of New York, while operating his motor vehicle in Ontario, Canada, collided with a train which resulted in his death and the death of his guest passenger, a resident of Ontario. The court there held in denying a motion by the representative of the deceased passenger to strike an affirmative defense setting up the Ontario guest statute, that Ontario Law, the lex loci delicti, should govern.

The rationale of the Neumeier court, as distinguished from the finding in Tooker, is stated as follows (pp. 125-126, 335 N.Y.S.2d pp. 67-68, 286 N.E.2d pp. 457-58):

"What significantly and...