O'Rourke v. Long

• Decision Date: 28 December 1976
• Citation: 391 N.Y.S.2d 553,359 N.E.2d 1347,41 N.Y.2d 219
• Parties: , 359 N.E.2d 1347 Christopher O'ROURKE, an infant, by his father and natural guardian, John J. O'Rourke, et al., Appellants, v. Frank E. LONG et al., Defendants, and Long Island Daily Press Publishing Company, Inc., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 553

391 N.Y.S.2d 553

41 N.Y.2d 219, 359 N.E.2d 1347

Christopher O'ROURKE, an infant, by his father and natural guardian, John J. O'Rourke, et al., Appellants, v. Frank E. LONG et al., Defendants, and Long Island Daily Press Publishing Company, Inc., Respondent.

Court of Appeals of New York.

Dec. 28, 1976.

Norman H. Dachs, Mineola, for appellants.

A. Paul Goldblum, Forest Hills, for respondent.

JASEN, Judge.

This personal injury action arises out of an accident which occurred on June 25, 1970. The infant plaintiff, Christopher O'Rourke who was then 10 years old, had been illegally ^* engaged in delivering the Long Island Press newspaper on the afternoon of that day. He had left his home by bicycle and rode along the local streets, carrying newspapers in the rear basket, pausing occasionally to distribute papers to customers' residences. He had not yet finished delivering the newspapers when he spied an ice cream truck proceeding towards him on the opposite side of the street. After signaling the operator of the truck to stop, he dismounted his bicycle and crossed the street to buy ice cream. Upon returning from the ice cream truck, he was struck by a passing vehicle.

On October 5, 1970, a claim for workmen's compensation was filed on behalf of the infant plaintiff with the Workmen's Compensation Board. Shortly thereafter, a check was sent to Christopher by the newspaper's workmen's compensation carrier, but was returned to the carrier by his counsel. Plaintiffs, the boy and his father, who sues derivatively, then instituted a plenary action against the newspaper, the owner and operator of the ice cream truck, and the owner and operator of the motor vehicle which struck the infant plaintiff while the motor vehicle was passing the standing ice cream truck. The action against all of the defendants, except the newspaper, was settled during the trial and discontinued. The complaint against the Long Island Press was dismissed by the court at the close of the plaintiff's case upon the ground that there was insufficient proof to establish a causal relationship between his illegal employment and the accident. The Appellate Division affirmed the judgment, without opinion. Two Justices dissented, taking the view that the question of proximate cause should have been presented to the jury. (47 A.D.2d 950, 367 N.Y.S.2d 306.) We believe that the complaint was properly dismissed, but for different reasons.

We find that it was error for the courts below to have passed upon the merits of the plaintiffs' tort claim with respect to the defendant Long Island Press. The 'defense' raised by the newspaper was that of workmen's compensation, an argument which questions the right of plaintiff to present a claim, whatever its merit, in court. It is axiomatic that, as to an employer, where workmen's compensation provides a remedy, the remedy that it provides, save for the rare case, is exclusive. Where liability is imposed upon an employer to provide workmen's compensation and compensation is provided, that liability is exclusive and in the stead of any other employer liability whatsoever. The initial question to be resolved whenever a defense of workmen's compensation is presented is whether the plaintiff has a right to bring a plenary action. If the right to sue the employer has been stripped away by workmen's compensation coverage, it is an arrogation of jurisdiction to consider a tort complaint on it merits. By considering a complaint on its merits, particularly if the plaintiff is permitted to put in favorable proof at a trial, the employer would be subject to finding off liability in a forum from which the Legislature provided a shield. Here, over thrice repeated objections, the employer was put to lengthy and expensive pretrial and trial proceedings before a tribunal that was without authority to impose tort liability.

The Workmen's Compensation Law evinces a legislative design to require employers to pay workmen's compensation benefits where employees sustain injuries or meet their death in the course of specified hazardous employments. (Workmen's Compensation Law, § 3.) Every employer who is subject to the law must 'secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment without regard to fault as a cause of the injury, except that there shall be no liability for compensation under this chapter when the injury has been solely occasioned by intoxication of the injured employee while on duty or by wilful intention of the injured employee to bring about the injury or death of himself or another.' (Workmen's Compensation Law, § 10.) The liability of the employer to provide compensation is the exclusive liability of the employer unless the employer fails to secure the payment of compensation. (Workmen's Compensation Law, § 11.) Securing the payment of compensation involves the procurement of one of several forms of insurance, or, alternatively, obtaining authorization to rely upon self-insurance. (Workmen's Compensation Law, § 50.) In the event that payment of compensation is not secured, the employee, or in the case of death his representatives, may nevertheless elect to claim compensation or, at their option, maintain a plenary action in the courts for damages. (Workmen's Compensation Law, § 11; see, generally, 2A Larsen, Workmen's Compensation Law, § 67.22.)

It is well recognized that the compensation statute was designed to provide a swift and sure source of benefits to the injured employee or to the dependents of the deceased employee. The price for these secure benefits is the loss of the common-law tort action in which greater benefits might be obtained. Thus, unless the employee can establish the existence of a limited number of exceptional circumstances, the sole remedy is workmen's compensation.

In this case, the plaintiffs presented and relied upon two arguments to sustain the availability of the tort action: that the infant was not an ewmployee and that the defendant failed to prove that it had secured the payment of compensation. Both contentions raise questions of law which should have been rejected by the courts below.

Ever since January 1, 1962, the work of newspaper carriers has been defined as hazardous employment for which the employer is liable to pay compensation in the event of injury. (Workmen's Compensation Law, § 3, subd. 1 (Group 21).) The fact that the employment was illegal is not a circumstance which removes the employer or the employee from the scope of the compensation law. (Noreen v. Vogel & Bros., 231 N.Y. 317, 322, 132 N.E. 102, 103.) Instead, the sanction against illegal employment provided by the Legislature is the imposition of an award twice the amount ordinarily payable. (Workmen's Compensation Law, § 14--a.)

For purposes of the Workmen's Compensation Law only, the term employer was statutorily defined to include 'a person, partnership, association, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation who delivers or causes to be delivered newspapers or periodicals for delivering or selling and delivering by a newspaper carrier under the age of eighteen years as defined in section thirty-two hundred twenty-eight of the education law.' (Workmen's Compensation Law, § 2, subd. 3.) The term employee was defined to include newspaper carriers under the age of 18 as defined in the Education Law and the term of employment was stated to include the delivery or sale and delivery of newspapers and periodicals as defined in the Education Law. (Workmen's Compensation Law, § 2, subds. 4, 5.) The Education Law states that a newspaper carrier is a minor between the ages of 12 and 18 who 'engages in the occupation of delivering or selling and delivering newspapers or periodicals to customers at their homes or places of business.' (Education Law, § 3228, subd. 1.)

In their complaint, plaintiffs alleged that the boy was engaged by the defendant Long Island Press as a 'newspaper deliverer' and this was admitted by the defendant. The plaintiffs' argument is that since the boy was underage he was outside the Education Law definition. However, the Legislature in developing the statutory definition had no need to include minors under 12 within the definition since these children were absolutely prohibited from engaging in such employment. Moreover, the plaintiffs overlook section 14--a of the Workmen's Compensation Law which states that an employer who knowingly permits or suffers a newspaper carrier to work in violation of the Education Law is liable for a double award. It could scarcely be comprehensible that the Legislature would provide for a double award in cases of employer knowledge of illegality, as it did, when, as plaintiffs contend, compensation was not payable at all. In addition, subdivisions 3 and 4 of section 2 of the Workmen's Compensation Law provide for coverage of newspaper carriers under the age of eighteen' without mention of the minimum age of 12. The reference to the Education Law definition may appropriately be viewed as a reference to the definition of the occupation rather than an incorporation of the minimum age provision. It is not without significance that the Education Law grants the Industrial Commissioner the authority to enforce the restrictions upon employment of newspaper carriers, with the sole exception of the issuance and revocation of permits. (Education Law, § 3228, subd. 7.) Although usually whether a worker is an employee involves a question of fact to be resolved by the Workmen's Compensation Board (Matter of Gordon v. New York Life Ins. Co., 300 N.Y. 652, 654, 90 N.E.2d 898, 899), the determination of the employment status of this plaintiff involves an issue of statutory construction and presents a pure question of law, which in light of conceded facts,...