Yun Jeong Koo v. St. Bernard

• Decision Date: 14 March 1977
• Citation: 392 N.Y.S.2d 815,89 Misc.2d 775
• Parties: YUN JEONG KOO, an infant, under the age of 18, by her parents and guardians, Young Chi Koo and Kwan Soo Koo, et al., Plaintiffs, v. Carlton ST. BERNARD, Defendant.
• Court: New York Supreme Court

Page 815

392 N.Y.S.2d 815

89 Misc.2d 775

YUN JEONG KOO, an infant, under the age of 18, by her parents and guardians, Young Chi Koo and Kwan Soo Koo, et al., Plaintiffs, v. Carlton ST. BERNARD, Defendant.

Supreme Court, Special Term, Queens County, Part I.

March 14, 1977.

Paul William Siegert, New York City, for plaintiffs.

Benjamin Purvin, Lake Success, for defendant.

MEMORANDUM

HAROLD HYMAN, Justice.

This motion made by plaintiffs pursuant to CPLR 3211(b), to dismiss defendant's affirmative defense, is on first impression one that brings to the forefront a needful interpretation of Article 14--A, particularly sections 1411 and 1412, of the Civil Practice Law and Rules which first became effective September 1, 1975.

The facts in the instant matter, as presented by the papers, are as follows:

Yun Jeong Koo is an infant under the age of 18 years; actually it is claimed she was only four years and ten months old at the time of the occurrence. The infant, by her 'parents and guardians', brings this action to recover damages for personal injuries suffered by reason of defendant's negligence in the operation of his automobile on May 10, 1976, and they also personally claim damages because of claimed deprivation of society, companionship, love, affection and services of their daughter.

Defendant's answer to the complaint contains an alleged 'affirmative defense' which states:

'Any damages sustained by the plaintiff were caused by the culpable conduct of the plaintiff, including contributory negligence or assumption of risk, and not by the culpable conduct or negligence of this * * * answering defendant(s).'

Plaintiffs contend that the alleged defense is without merit and insufficient as a matter of law in that, because of infant plaintiff's age, she cannot be held contributorily negligent (Ehrlich v. Marra, 32 A.D.2d 638, 300 N.Y.S.2d 81) and therefore guilty of culpable conduct.

Defendant contends that his affirmative defense is based upon the relatively new provisions and requirements of Article 14--A of the Civil Practice Law and Rules, more particularly sections 1411 and 1412 which became effective on September 1, 1975 by chapter 69 of section 4 of the Laws of 1975, which state:

'In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.' (CPLR 1411.)

Further, section 1412 of the CPLR provides that:

'Culpable conduct claimed in diminution of damages, in accordance with section fourteen hundred eleven, shall be an affirmative defense to be pleaded and proved by the party asserting the defense.'

This article and the provisions aforestated indicate an adoption by the Legislature of this State of a doctrine of pure comparative negligence, permitting plaintiffs who are contributorily negligent to receive proportionately diminished recoveries even where they may have assumed the risk leading to their injury and damage. It also changes the plaintiff's former necessity of proving himself free from in anywise contributing to the occurrence which caused his injuries by now placing the onus, the burden, upon defendant to plead and prove plaintiff's 'culpable conduct' in diminution of plaintiff's damage. The burden of proof has therefore now been shifted by statute to defendant.

It is defendant's contention in this matter that prior case law involving infants being incapable of being contributorily negligent has given way to the now broader concept that an infant may be held to have culpably conducted herself to a degree that her damage from injury could be diminished to the point of zero.

The law is well settled that an infant under four years of age is presumed legally incapable of understanding danger and therefore cannot be found negligent nor in any way responsible for her acts. (Verni v. Johnson, 295 N.Y. 436, 68 N.E.2d 431, Ann. 174 A.L.R. 1078; Beekman Estate v. Midonick, 44 Misc.2d 11, 252 N.Y.S.2d 885.) This theory, in one matter, has even been extended to an infant four years and ten months of age (Ehrlich v. Marra, supra), a case decided in 1969. On the other hand, there are cases which hold that there is no such presumption with respect to a child above the age of four years (Snell v. MVAIC, 34 A.D.2d 872, 310 N.Y.S.2d 828) who, if of sufficient maturity to appreciate danger and to take steps to avoid it, may be chargeable with negligence. (Camardo v. New York State Railways, 247 N.Y. 111, 116, 159 N.E. 879, 880; Chandler v. Keene, 5 A.D.2d 42, 168 N.Y.S.2d 788; Weidenfeld v. Surface Transportation Corp. of N.Y., 269 App.Div. 341, 344--345, 55 N.Y.S.2d 780, 782--783.)

In Camardo v. New York State Railways (supra), the court was confronted with the issue of a child four years and ten months old (similar to the infant plaintiff herein) and the court therein stated (247 N.Y. at pp. 116--117, 159 N.E. at p. 880):

'True, there are cases where an infant plaintiff injured by the negligence of another is so young that even though we recognize individual variations in children of the same age, the only reasonable inference is that the child was incapable of realizing or avoiding the danger of injury. Only in such cases may we say that a child is non sui juris as a matter of law.' (Emphasis supplied.)

'* * * no rule of thumb can be deduced which is applicable to all cases. Determination whether under the particular circumstances in each case reasonable men might...