Winnick v. Kupperman Const. Co.

• Decision Date: 19 February 1968
• Citation: 287 N.Y.S.2d 329,29 A.D.2d 261
• Parties: Nadine Hope WINNICK, an infant, etc., et al., Respondents, v. KUPPERMAN CONSTRUCTION COMPANY, Inc., Respondent, et al., Defendant. ATLAS AUTO REPAIR SERVICE, INC., Defendant-Appellant and Third-Party Plaintiff-Respondent, v. Albert WINNICK, Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 329

287 N.Y.S.2d 329

29 A.D.2d 261

Nadine Hope WINNICK, an infant, etc., et al., Respondents, v. KUPPERMAN CONSTRUCTION COMPANY, Inc., Respondent, et al., Defendant.

ATLAS AUTO REPAIR SERVICE, INC., Defendant-Appellant and Third-Party Plaintiff-Respondent, v. Albert WINNICK, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 19, 1968.

Henry Wolfman, New York City (Lewis I. Wolf and Edward R. Koudelka, Jr., New York City, of counsel) for appellant-respondent Atlas Auto Repair Service, Inc.

Di Fede & Martoccia, New York City (Arthur R. Martoccia, New York City, of counsel) for appellant Albert Winnick.

Mayer, Zeck & Prier, Suffern (Robert W. Prier, Suffern, of counsel) for plaintiffs-respondents.

Cerrato, Nayor & Edmiston, Yonkers (M. Morton Edmiston, Jr., Yonkers, of counsel) for respondent Kupperman Construction Company, Inc.

Before CHRIST, Acting P.J., and BRENNAN, RABIN, HOPKINS and MUNDER, JJ.

CHRIST, Acting Presiding Justice.

The principal question presented is whether an owner of a motor vehicle which permitted its employee to use it may be held liable to an unemancipated infant child of the employee for the latter's negligence in the operation of the vehicle. The court below answered the question in the affirmative.

The third-party defendant, Albert Winnick, is the infant plaintiff's father and president of the owner, the defendant and third-party plaintiff Atlas Auto Repair Service, Inc. While he was operating a car owned by Atlas with its permission, his 15-year-old passenger daughter was injured due to his alleged negligence. They were traveling on a road in a real estate development, having visited a house being built there for their family. Defendants Kupperman Construction Co., Inc. and Ward Pavements, Inc., were the general contractor and the street paving contractor, respectively. The car went into a depression in the road and got caught on a raised manhole cover.

In the main action, the plaintiffs claim that the defendants Kupperman and Ward were negligent in maintaining the road and that Atlas is liable as owner of the automobile for the negligence of its operator, the infant's father. Since an unemancipated minor child has no right of action against a parent for nonwillful injuries (Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718; Sikora v. Keillor, 17 A.D.2d 6, 230 N.Y.S.2d 571, affd. 13 N.Y.2d 610, 240 N.Y.S.2d 601, 191 N.E.2d 88; Schomber v. Tait, 207 Misc. 328, 140 N.Y.S.2d 746), the infant plaintiff has not sued her father, but instead sued, among others, her father's employer, Atlas, which owned the car. Her mother has similarly claimed upon the derivative cause for medical expenses, etc. Atlas has claimed over against the father upon the ground that an owner of an automobile, held derivatively liable solely by reason of his ownership (Vehicle and Traffic Law, § 388), may claim over against the driver who is the active tortfeasor (Naso v. Lafata, 4 N.Y.2d 585 590, 176 N.Y.S.2d 622, 626, 152 N.E.2d 59, 61; Traub v. Dinzler, 309 N.Y. 395, 131 N.E.2d 564).

Special term held that the infant plaintiff's claim against Atlas is legally sufficient. Accordingly, it denied (1) Atlas' motion for summary judgment against plaintiffs and for dismissal of plaintiffs' complaint for insufficiency and (2) the father's cross motion for like relief and for dismissal of the third-party complaint. For the reasons that follow, we have concluded that the determination below was proper.

Section 388 (subd. 1) of the Vehicle and Traffic Law (formerly § 59), upon which the plaintiffs rely, attributes to the owner of a motor vehicle the negligence of a person 'in the use or operation of such vehicle, in the business of such owner Or otherwise, by any person using or operating the same with the permission, express or implied, of such owner' (emphasis supplied). Atlas contends that it is not liable under this statute because its supposed liability would be derived from the infant plaintiff's father and the infant plaintiff cannot recover from her father, pursuant to the rule that an unemancipated infant child cannot maintain an action against his parent for negligence.

At common law, a person could not maintain an action against his or her spouse for personal injuries, whether negligent or willful--a rule based on the doctrine of the merger of their beings in the unity of marriage (Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 255, 164 N.E. 42, 64 A.L.R. 293). Similarly, it was held that an action for personal injuries resulting from nonwillful negligence may not be maintained by an unemancipated child against his parent, because to permit such an action would inject disruptive litigation into family unity (Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551 (dec. 1928); Cannon v. Cannon, 287 N.Y. 425, 429, 40 N.E.2d 236, 238 (dec. 1942)).

In 1928, in the leading case of Schubert v. August Schubert Wagon Co. supra, the Court of Appeals refused to extend the husband-wife immunity in an action arising out of a motor vehicle accident where the wife had elected to sue the husband's principal. There it was held that, under the common-law theory of Respondeat superior, a wife could recover against her husband's employer for the negligent operation of the employer's vehicle by the husband while acting within the scope of his employment. The court held that the disability of the wife or husband to maintain an action against the other for injuries to the person was not a disability to maintain a like action against the other's principal or master. Chief Judge Cardozo, writing for the court, stated (249 N.Y. pp. 256--257, 164 N.E. p. 43): 'The defendant, to make out a defense, is thus driven to maintain that the act, however negligent, was none the less lawful because committed by a husband upon the person of his wife. This is to pervert the meaning and effect of the disability that has its origin in marital identity. A trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act, though the law exempts the husband from liability for the damage. Others may not hide behind the skirts of his immunity.' The same principle was invoked where an infant was injured due to the negligence of a parent (Sullivan v. Christiensen, Sup., 191 N.Y.S.2d 625; Schomber v. Tait, 207 Misc. 328, 140 N.Y.S.2d 746, supra).

In Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718, supra, a mother on behalf of her three-year-old child Sued the child's father for personal injuries. It was alleged that the father had left the family car unlocked in a parking lot and the child had released the brakes and become hurt in trying to jump from the vehicle. In affirming a dismissal of the complaint for insufficiency, the Court of Appeals held that an unemancipated minor child had no right of action Against his parent for nonwillful injuries. Contending that numerous exceptions and qualifications over the years have eroded the doctrine of immunity and that this principle has become unsuitable in our times, Judge Fuld wrote a comprehensive dissent, in which he observed, Inter alia (p. 477, 215 N.Y.S.2d p. 39, 174 N.E.2d p. 721):

'In addition, a child may actually, albeit indirectly, obtain redress from his parent for personal injuries resulting from an automobile accident if the child can find and sue a third person who in turn transfers his liability to the parent. A common case of this sort is one in which the father inflicts the injury while driving a vehicle in the course of his employment. The child recovers from his father's employer and thereupon the latter obtains indemnity from the father in the full amount of the child's recovery (citing cases)'.

While the majority in Bodigian, supra was not persuaded that the doctrine of parental immunity should be totally abolished outright, its holding is not contrary to the statement by Judge Fuld just quoted.

The weight of authority in other jurisdictions is in accord with the rule that a spouse or infant child of a driver of a vehicle may recover against the driver's employer for the driver's negligent operation of the vehicle while acting within the scope of his employment (Ann. 1 A.L.R.3d 677; see also Restatement of Agency 2d, § 217, comment b).

Under the doctrine of Respondeat superior alone, an employer would be subject to liability only when his vehicle is used in the course of his business (Mergentime v. New England Tel. & Tel. Co., 225 App.Div. 628, 8 N.Y.S.2d 637, affd. 281 N.Y. 739, 23 N.E.2d 551; Cherwien v. Geiter, 272 N.Y. 165, 168, 5 N.E.2d 185, 186). In the present case it appears that the car was not thus employed, for it is...