Reale by Reale v. Herco, Inc.

• Decision Date: 26 October 1992
• Citation: 183 A.D.2d 163,589 N.Y.S.2d 502
• Parties: Christopher REALE, by His Mother and Natural Guardian, Virginia REALE, et al., Plaintiffs, v. HERCO, INC., et al., Defendants. HERCO, INC., Third-Party Plaintiff, v. GAME TIME, INC., Third-Party Defendant. HERCO, INC., Fourth-Party Plaintiff-Appellant, v. Virginia REALE, Fourth-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 502

589 N.Y.S.2d 502

183 A.D.2d 163

Christopher REALE, by His Mother and Natural Guardian, Virginia REALE, et al., Plaintiffs, v. HERCO, INC., et al., Defendants.

HERCO, INC., Third-Party Plaintiff, v. GAME TIME, INC., Third-Party Defendant.

HERCO, INC., Fourth-Party Plaintiff-Appellant, v. Virginia REALE, Fourth-Party Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

Oct. 26, 1992.

Way & White, Jericho (James E. McElhone and Camille Nieves, of counsel), for defendant third-party plaintiff fourth-party plaintiff-appellant.

Devitt and Spellman, Smithtown (L. Kevin Sheridan, of counsel), for fourth-party defendant-respondent.

Before SULLIVAN, J.P., and HARWOOD, BALLETTA and EIBER, JJ.

BALLETTA, Justice.

On August 25, 1983, the infant plaintiff, Christopher Reale, was injured when he fell from a slide at Hershey High Meadow Camp, which is located in Hershey, Pennsylvania, and which is owned and operated by the appellant Herco, Inc. (hereinafter Herco), a corporation domiciled in Pennsylvania. The infant plaintiff and his mother, the plaintiff Virginia Reale, are residents of New York.

The plaintiffs commenced the instant action alleging, inter alia, that as a result of Herco's negligence, the infant plaintiff sustained injuries when he fell from a slide at the camp. Herco subsequently instituted a fourth-party action against the infant's mother, Virginia Reale, alleging that she was responsible in whole or in part for the infant's injuries for failure to provide proper parental supervision. This fourth-party claim was based on Pennsylvania law, which permits an alleged tortfeasor to seek contribution from a parent for negligent supervision (see, Miller v. Leljedal, 71 Pa.Commw. 372, 455 A.2d 256). In the order appealed from, the Supreme Court granted the mother's motion to dismiss the fourth-party complaint, stating that New York law, which does not recognize a cause of action to recover damages for negligent parental supervision, was applicable under New York choice-of-law rules.

The issue in this case involves a conflict between the laws of New York and the laws of Pennsylvania. The question of which state's law should apply in this negligence action involving a tort allegedly committed in Pennsylvania by a domiciliary of Pennsylvania, injuring the infant plaintiff, who is domiciled in New York, must be resolved in favor of Pennsylvania law. We hold that Pennsylvania law, which allows a cause of action to recover damages for negligent parental supervision, should govern in the instant case.

Traditionally, New York courts resolved choice of law conflicts in tort cases by applying the law of the place of the alleged wrong (the lex loci delicti rule). However, in Babcock v. Jackson, 12 N.Y.2d 473, 479, 240 N.Y.S.2d 743, 191 N.E.2d 279, the Court of Appeals moved away from the mechanical application of the lex loci delicti rule and employed a "center of gravity" or "grouping of contacts" test in a situation where codomiciliaries of New York were involved in a car accident in Ontario. The Court of Appeals refused to apply Ontario's guest statute, which would have barred the plaintiff's action against the defendant host driver, holding that New York's interests in enforcing its rules governing recovery of damages for admitted wrongs were paramount. In so doing, the court stated that "[j]ustice, fairness and 'the best practical result' * * * 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" (Babcock v. Jackson, supra, at 481, 240 N.Y.S.2d 743, 191 N.E.2d 279).

Following Babcock, New York choice-of-law theory continued to undergo refinement (see, e.g., Dym v. Gordon, 16 N.Y.2d 120, 262 N.Y.S.2d 463, 209 N.E.2d 792; Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394; Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d 734, 237 N.E.2d 877; see generally, Korn, The Choice-of-Law Revolution: A Critique, 83 Colum.L.R. 772; Feldman v. Acapulco Princess Hotel, 137 Misc.2d 878, 520 N.Y.S.2d 477). Then, in Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454, the Court of Appeals was presented with a split-domicile case. In Neumeier, the guest, a domiciliary of Ontario, was killed when the car in which he was a passenger collided with a train in Ontario. In holding that Ontario's guest statute applied to the suit against the driver, a New York domiciliary, the court thought it important that the guest, for whose death recovery was sought, was domiciled in Ontario, Ontario was the place of the accident, and Ontario was the very jurisdiction which had enacted the statute designed to protect the host from liability for ordinary negligence (see, Neumeier v. Kuehner, supra, at 125, 335 N.Y.S.2d 64, 286 N.E.2d 454).

Chief Judge Fuld, who wrote the opinion in Neumeier v. Kuehner, supra, at 127, 335 N.Y.S.2d 64, 286 N.E.2d 454, adopted three choice-of-law rules for resolving conflicts "in order to assure a greater degree of predictability and uniformity". These rules had originally been suggested by Chief Judge Fuld in his concurring opinion in Tooker v. Lopez, supra. The third rule, which is of particular relevance to the case at bar, is as follows "3. In other situations, when the passenger and the driver are domiciled in different states, the rule is necessarily less categorical. Normally, the applicable rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants" (Neumeier v. Kuehner, supra, at 128, 335 N.Y.S.2d 64, 286 N.E.2d 454).

The Court of Appeals again reviewed the choice-of-law rules in Schultz v. Boy Scouts of Am., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679. In Schultz, the infant plaintiffs (domiciliaries of New Jersey) brought suit in New York against the Boy Scouts of America (domiciled in New Jersey) and the Franciscan Brothers of the Poor (domiciled in Ohio) for personal injuries arising out of sexual abuse by a troop leader that occurred at a Boy Scout camp in New York. The issue faced by the court was whether to apply New Jersey law, which had a charitable immunity statute, or New York law, which would have permitted suit against the defendant charities (no issue was raised as to the applicability of Ohio law).

The Schultz court initially noted that New York followed an interest analysis approach to conflict-of-law problems, stating that "the significant contacts are, almost exclusively, the parties' domiciles and the locus of the tort" (Schultz v. Boy Scouts of Am., supra, at 197, 491 N.Y.S.2d 90, 480 N.E.2d 679). The court applied the third Neumeier rule to the cause of action against the Franciscan Brothers "because the parties are domiciled in different jurisdictions with conflicting loss-distribution rules and the locus of the tort is New York, a separate jurisdiction" (Schultz v. Boy Scouts of Am., supra, at 201, 491 N.Y.S.2d 90, 480 N.E.2d 679). Although it recognized that the law of the place of the tort would normally apply, the court concluded that the defendants had met their burden in showing that New Jersey law was the applicable law under the "special circumstances" exception to the third Neumeier rule. In particular, the court found that:

"application of the law of New Jersey * * * would further that State's interest in enforcing the decision of its domiciliaries to accept the burdens as well as the benefits of that State's loss-distribution tort rules and its interest in promoting the continuation and expansion of defendant's charitable activities in that State * * * [and] application of New Jersey law will enhance the smooth working of the multi-state system by actually reducing the incentive for forum shopping and it will provide certainty for the litigants whose only reasonable expectation surely would have been that the law of the jurisdiction where plaintiffs are domiciled and defendant sends its teachers would apply, not the law of New York where the parties had only isolated and infrequent contacts as a result of [the defendant teacher's] position as a Boy Scout leader" (Schultz v. Boy Scouts of Am., supra, at 201-202, 491 N.Y.S.2d 90, 480 N.E.2d 679).

It should be noted that the Schultz court held that New Jersey law was applicable despite the public policy doctrine under which a forum may refuse to apply a portion of foreign law that would otherwise be applicable because it is contrary or repugnant to its State's own public policy. In order to come within the public policy exception, the proponent must not only establish that the foreign law is contrary to New York public policy, but he or she must also establish that there are enough important contacts between the two parties, the occurrence, and the New York forum to implicate New York's public policy and to preclude enforcement of the foreign law. The proponent must then show that enforcement of the foreign law " 'would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal' expressed in them" (Schultz v. Boy Scouts of Am., supra, at 202, 491 N.Y.S.2d 90, 480 N.E.2d 679, quoting from Loucks v. Standard Oil Co., 224 N.Y. 99, 111, 120 N.E. 198; see also, Rakaric v. Croatian Cultural Club, 76 A.D.2d 619, 430 N.Y.S.2d 829; Scharfman v. National Jewish Hosp. & Research Center, 122 A.D.2d 939, 506 N.Y.S.2d 90). The court concluded that there were insufficient contacts between New York, the parties, and the transactions involved to implicate New York's public policy which would call for its enforcement.

Following the Babcock, Neumeier, and Schultz line of case...