Weiner v. Greyhound Bus Lines, Inc.

• Decision Date: 27 December 1976
• Citation: 55 A.D.2d 189,389 N.Y.S.2d 884
• Court: New York Supreme Court — Appellate Division
• Parties: Alan Vance WEINER, an infant, etc., Respondent, v. GREYHOUND BUS LINES, INC., et al., Appellants, et al., Defendant.

Page 884

389 N.Y.S.2d 884

55 A.D.2d 189

Alan Vance WEINER, an infant, etc., Respondent, v. GREYHOUND BUS LINES, INC., et al., Appellants, et al., Defendant.

Supreme Court, Appellate Division, Second Department.

Dec. 27, 1976.

Reilly & Reilly, New York City, for appellant Weiner, and Schwartz, Levitt, Sommer & Blitz, Brooklyn, for appellant Greyhound Bus Lines, Inc. (Arthur N. Seiff, John G. Reilly, New York City, and Samuel Levitt, Brooklyn, of counsel; one brief).

Spatt & Bauman, P.C., New York City (Bert Bauman, New York City, of counsel), for respondent.

Before GULOTTA, P.J., and HOPKINS, LATHAM, SHAPIRO and HAWKINS, JJ.

HOPKINS, Justice.

The action is brought to recover for personal injuries arising out of the claimed negligence of the defendants. He issue before us is whether the action is barred by the doctrine of collateral estoppel. Special Term held that it was not barred. We affirm. The prior action in which the defendants were successful in resisting recovery did not conclude the infant plaintiff in this action, for he was not actually a party to the prior proceedings.

I.

On March 7, 1971, the infant plaintiff (then 9-years old) and his sister Julie (then 10-years old) were passengers in an automobile owned by their father and operated by their mother (defendant Weiner), when it collided with a bus owned by the defendant Greyhound and a second automobile owned and operated by Barry Stone. ¹ As a result of the collision, the infant plaintiff suffered serious injuries and his sister Julie was killed.

In due course an action was commenced by their grandmother (Audrey Weiner) in the United States District Court, Eastern District of New York, against the defendants Weiner and Greyhound, as well as Barry Stone, for the recovery of damages on behalf of the infant plaintiff due to his personal injuries and for the recovery of damages due to the wrongful death of Julie. Audrey sued in two separate capacities, i.e., as guardian ad litem of the infant plaintiff, and as administratrix of the estate of Julie.

Before the Federal action came to trial, the infant plaintiff's action was dismissed without prejudice for lack of diversity of citizenship. Accordingly, the present action was then instituted by Audrey, as guardian ad litem of the infant plaintiff. The Federal action continued and resulted in a dismissal by the court of the complaint against the defendants Greyhound and Stone as a matter of law, and a verdict in favor of the defendant Weiner by the jury, which found no negligence on her part. On appeal, the judgment was affirmed by the Court of Appeals, Second Circuit (Weiner v. Weiner, 535 F.2d 1244).

The defendants Weiner and Greyhound then moved to dismiss the complaint in this action on the ground that the judgment in the Federal action collaterally estopped the infa plaintiff from maintaining his suit. Special Term denied their motions. ²

II.

The appealing defendants contend that the basic issue common both to the Federal action and this action is their negligence; that this issue was fully litigated in the Federal action by the same attorneys who now represent Audrey and the infant plaintiff; that no additional proof could be presented at the trial of this action; and that the doctrine of collateral estoppel intervenes to bar a second action for the reasons of public policy enunciated in Schwartz v. Public Administrator, 24 N.Y.2d 65, 70, 72, 298 N.Y.S.2d 955, 958, 960, 246 N.E.2d 725, 728, 729.

The infant plainiff, on the other hand, points out that his cause of action was removed from the Federal action, and that, consequently, he was not bound by the unfavorable disposition to Audrey in her capacity as administratrix of the estate of Julie. Moreover, he asserts that the defeat in the Federal action was probably the result of a reluctance by the jury to permit the defendant Weiner, as mother of Julie, to share in a recovery for wrongful death caused in large part by that defendant's conduct.

A review of the positions of the parties compels an analysis of the reasons underpinning collateral estoppel and Res judicata generally.

III.

In its broadest sense, the docrine of Res judicata is based on the interests of practicality and finality--that is, that limits ought to be imposed on litigation, and that once a cause has been fairly tried, a second suit for relief based on the same facts ought to be foreclosed (Matter of New York State Labor Relations Bd. v. Holland Laundry, 294 N.Y. 480, 493--494, 63 N.E.2d 68, 74--75). Collateral estoppel is but a corollary to the doctrine--a special aspect which introduces the gloss that an identical issue decided in the first action and decisive of the second action cannot be relitigated, unless a fair and full opportunity to contest that decision was not afforded (Schwartz v. Public Administrator, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 958, 246 N.E.2d 725, 728 Supra). Inherent in the concept of collateral estoppel is the fairness of the process, to the end that a party should not be precluded from obtaining a full and fair hearing in a forum on his claim (cf. Read v. Sacco, 49 A.D.2d 471, 474, 375 N.Y.S.2d 371, 375; Vincent v. Thompson, 50 A.D.2d 211, 218, 377 N.Y.S.2d 118, 125).

Although collateral estoppel thus emphasizes identity of issues rather than identity of parties, the relationship of the parties in the first litigation must still bear high significance in the analysis. The doctrine, it is true, bars not only parties to the first litigation, but also their privies (Downey v. Seib, 185 N.Y. 427, 433, 78 N.E. 66, 67). Yet, privity is an admittedly amorphous term--it 'denotes mutual or successive relationship to the same right of property' (Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111, 128--129, 32 S.Ct. 641, 643, 56 L.Ed. 1009). Here, the right of the infant plaintiff to recover for his personal injuries is neither mutual nor successive as regards the claim arising out of the wrongful death of his sister.

The argument of the defendants rests primarily on the relationship of the grandmother in the two litigations. But her presence in both actions was not as an individual, but as a representative, and a representative of different interests. In the Federal action she appeared as plaintiff in her capacity as administratrix of the estate of the deceased sister. In this action, she sues for and on behalf of the injured infant as his next friend. Thus, her responsibility in the first action was not coterminous with her responsibility in the second action. Usually, in the absence of a state of facts in which justice requires that an estoppel be established, a judgment for or against a party in one fiduciary capacity will not conclude the determination of a right advanced in another fiduciary capacity (cf. Molino v. County of Putnam, 29 N.Y.2d 44, 49, 323 N.Y.S.2d 817, 820, 272 N.E.2d 323, 325; Matter of Sullivan, 289 N.Y. 323, 45 N.E.2d 819; Matter of Parascandola v. National Sur. Co., 249 N.Y. 335, 164 N.E. 242; Bell v. Merrifield, 109 N.Y. 202, 16 N.E. 55). 'The legal differences between individuals and estate representatives are practical as well as technical, and too well established to require discussion. This being so, it is unnecessary to do more than note the additional and subsidiary consideration that in an action for conscious pain and suffering, and to a lesser degree in a wrongful death action, an executor or administrator represents interests additional to those of the distributees' (Molino v. County of Putnam, 29 N.Y.2d 44, 49, 323 N.Y.S.2d 817, 820, 272 N.E.2d 323, 325, Supra; see, also, Deaton v. Gay Trucking Co., 275 F.Supp. 750, 754--755; Illinois Cent....