Scholl v. Town of Babylon

• Decision Date: 26 September 1983
• Citation: 466 N.Y.S.2d 976,95 A.D.2d 475
• Parties: , 1984 A.M.C. 157 Paulette SCHOLL, as Administratrix, etc., Respondent-Appellant, v. The TOWN OF BABYLON, Appellant-Respondent, Henry Hitz, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 976

466 N.Y.S.2d 976

95 A.D.2d 475, 1984 A.M.C. 157

Paulette SCHOLL, as Administratrix, etc., Respondent-Appellant, v. The TOWN OF BABYLON, Appellant-Respondent Henry Hitz, et al., Defendants-Respondents.

Supreme Court, Appellate Division Second Department.

Sept. 26, 1983.

Kelly, Rode, Kelly & Burke, Mineola (John D. Kelly and Stephen P. Burke, Mineola, of counsel), for appellant-respondent.

McCoy & Agoglia, P.C., Mineola (Harold V. McCoy and Blane Magee, Mineola, of counsel), for respondent-appellant.

Before LAZER, J.P., and GULOTTA, BROWN and BOYERS, JJ.

BROWN, Justice.

The primary question presented for our resolution herein is whether the instant action--which arises out of the death of plaintiff's decedent after he was struck by a pleasure boat while crabbing within the navigable waters of the State--is governed by State substantive law or whether it is subject to admiralty jurisdiction and controlled by principles of general maritime law. Since the incident occurred prior to the advent of comparative negligence in New York, if the action falls within the purview of State law, the rule of contributory negligence applies. If it is subject to general maritime law--as we conclude it is--the doctrine of comparative negligence is applicable.

The facts are without significant dispute. On August 23, 1975, plaintiff's decedent, Robert Scholl, was struck by a 17-foot pleasure boat while crabbing in the navigable waters of the Great South Bay off the shore of Tanners Bay Park. The park is owned and operated by the Town of Babylon. Scholl, who was at the time using a snorkel, mask, fins and a net, suffered multiple head injuries in the accident and died three days later. The boat which struck him was owned by defendant Henry Hitz and was operated by defendant David Hitz. At the time of the accident neither Scholl nor either of the Hitz' was engaged in commercial activity. Scholl was survived by his wife, the plaintiff herein, and three infant children.

On November 20, 1975, a notice of claim was served upon the town pursuant to section 50-e of the General Municipal Law, which, inter alia, stated that plaintiff Paulette Scholl was administratrix of Robert Scholl's estate. Plaintiff was not duly appointed administratrix of the estate, however, until April 27, 1976. This action was commenced shortly thereafter. Following joinder of issue and the completion of discovery proceedings, the town made a motion which had two branches.

In one branch the town sought leave to amend its answer to assert the defense of the contributory negligence of the decedent (EPTL 5-4.2), claiming that the action was governed by common-law principles of negligence and New York's wrongful death statute (EPTL 5-4.1 et seq ), rather than the principles of general maritime law. The court, concluding that the incident did not arise out of "traditional maritime activity" and that more than the mere occurrence of a tort on navigable waters was required in order to bring the matter within the scope of Federal admiralty jurisdiction, granted that branch of the town's motion which was to amend its answer, holding that the action was governed by the State wrongful death statute in effect on the date the accident occurred.

In the other branch of its motion the town sought dismissal of the complaint as against it on the grounds that the plaintiff had failed to comply with the notice of claim provisions of section 50-e and 50-i of the General Municipal Law. It argued that the notice of claim was defective since at the time of its service the plaintiff had yet to be appointed as the representative of the decedent's estate. The court denied the motion stating, inter alia, that under the facts any defect in the notice should be deemed waived.

We are of the view that while the court was correct in denying that branch of the town's motion which sought dismissal of the complaint as against it, it erred in granting the branch which sought leave to amend the town's answer to assert the defense of contributory negligence and in concluding thereby that principles of general maritime law are inapplicable upon the trial of this action.

Admiralty jurisdiction extends to those cases of damage or injury on navigable waters where the accident bears a significant relationship to traditional maritime activity regardless of whether the activity involved was of a commercial or noncommercial nature (Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300; Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454; U.S.Code, tit. 28, § 1333).

Prior to the decision of the Supreme Court of the United States in Executive Jet, the scope of admiralty jurisdiction was measured solely by the application of a locality test, i.e., whether the alleged wrong occurred upon navigable waters (see Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319; The Plymouth, 3 Wall. [70 U.S.] 20, 18 L.Ed. 125). In Executive Jet, however, faced with a claim for property damage to an airplane which crashed into Lake Erie upon takeoff, the court rejected this mechanical application of the locality rule and held that claims arising from airplane accidents are cognizable in admiralty only when the accident bears a significant relationship to traditional maritime activity (Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 504, 34 L.Ed.2d 454, supra ).

In Foremost, the court expanded upon its rejection of the locality rule in Executive Jet by applying it to cases beyond the context of aviation torts. Foremost involved a collision on a river in Louisiana between two pleasure boats, neither of which had ever been involved in commercial activity (Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300, supra ). In affirming the finding of the Court of Appeals that "two boats, regardless of their intended use, purpose, size and activity, are engaged in traditional maritime activity when a collision between them occurs on navigable waters" (Richardson v. Foremost Ins. Co., 641 F.2d 314, 316), the Supreme Court stated that "[b]ecause the 'wrong' here involves the negligent operation of a vessel on navigable waters, we believe that it has a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction in the District Court" Foremost Ins. Co. v. Richardson, 457 U.S. 668, p. 674, 102 S.Ct. at p. 2658,supra ). Specifically rejected was the argument that a relationship with commercial maritime activity is essential to the invocation of admiralty jurisdiction. The court reasoned that:

"Although the primary focus of admiralty jurisdiction is unquestionably the protection of maritime commerce, petitioners take too narrow a view of the federal interest sought to be protected. The federal interest in protecting maritime commerce cannot be adequately served if admiralty jurisdiction is restricted to those individuals actually engaged in commercial maritime activity. This interest can be fully vindicated only if all operators of vessels on navigable waters are subject to uniform rules of conduct. The failure to recognize the breadth of this federal interest ignores the potential effect of noncommercial maritime activity on maritime commerce. For example, if these two boats collided at the mouth of the St. Lawrence Seaway, there would be a substantial effect on maritime commerce, without regard to whether either boat was actively, or had been previously, engaged in commercial activity. Furthermore, admiralty law has traditionally been concerned with the conduct alleged to have caused this collision by virtue of its 'navigational rules--rules that govern the manner and direction those vessels may rightly move upon the waters'. Executive Jet, 409 US at 270, 93 S.Ct., at 505. The potential disruptive impact of a collision between boats on navigable waters, when coupled with the traditional concern that admiralty law holds for navigation, compels the conclusion that this collision between two pleasure boats on navigable waters has a significant relationship with maritime commerce.

"Yet, under the strict commercial rule proffered by petitioners, the status of the boats as 'pleasure' boats, as opposed to 'commercial' boats, would control the existence of admiralty jurisdiction. Application of this rule, however, leads to inconsistent findings or denials of admiralty jurisdiction similar to those found fatal to the locality rule in Executive Jet. Under the commercial rule, fortuitous circumstances such as whether the boat was, or had ever been, rented, or whether it had ever been used for commercial fishing, control the existence of federal court jurisdiction. The owner of a vessel used for both business and pleasure might be subject to radically different rules of liability depending upon whether his activity at the time of a collision is found by the court ultimately assuming jurisdiction over the controversy to have been sufficiently 'commercial'. We decline to inject the uncertainty inherent in such line drawing into maritime transportation. Moreover, the smooth flow of maritime commerce is promoted when all vessel operators are subject to the same duties and liabilities. Adopting the strict commercial rule would frustrate the goal of promoting the smooth flow of maritime commerce, because the duties and obligations of noncommercial navigators traversing navigable waters flowing through more than one State would differ 'depending upon their precise location within the territorial jurisdiction of one state or another'. Richardson v. Foremost Insurance Co., 641 F.2d, at 316.

"Finally, our interpretation is consistent with congressional activity in this area. First, Congress defines the term 'vessel,' for the purpose of determining the scope of various shipping and maritime transportation laws, to include all types of waterborn vessels, without regard to whether they...