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Gelbman v. Gelbman

Court of Appeals of the State of New York
Jan 9, 1969
23 N.Y.2d 434 (N.Y. 1969)

Summary

abrogating the defense of intrafamily immunity for nonwillful torts

Summary of this case from Santoro v. Donnelly

Opinion

Argued November 14, 1968

Decided January 9, 1969

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOHN J. DILLON, J.

David C. Gilberg and Michael H. Gilberg for appellant. William T. Gallagher for respondent.


Plaintiff Adele Gelbman was the passenger in an automobile owned by her and operated by her unemancipated 16-year-old son. This vehicle collided with the automobile owned and driven by one Herman Rudder while proceeding along a major thoroughfare in White Plains. Plaintiff, seriously injured in the accident, has commenced separate negligence actions against both drivers. The Rudder litigation has not yet been concluded, and is not now before the court. An insurance company, representing her son in the second action, has interposed as an affirmative defense the fact that defendant is the unemancipated son of plaintiff. The trial court, relying on prior decisions of this court, responded by dismissing the complaint. That determination was unanimously affirmed by the Appellate Division.

In this appeal, plaintiff requests that we review and then revoke a rule of this State prohibiting child-parent suits for nonwillful torts, first established in 1928 ( Sorrentino v. Sorrentino, 248 N.Y. 626) and twice reaffirmed ( Cannon v. Cannon, 287 N.Y. 425; Badigian v. Badigian, 9 N.Y.2d 472). While those cases dealt with suits by minors against parents, the converse of the present situation, the underlying policy considerations which influenced those decisions — if presently viable — should be equally determinative of this appeal.

The majority in Badigian proffered three reasons for maintaining the intrafamily immunity doctrine, barring suits for nonwillful torts. Thus, it was noted that no other jurisdiction had seen fit to abolish the immunity doctrine. This inactivity was attributed, at least in part, to the belief that a suit by a child against a parent would have serious consequences upon the unity of that family. The immunity rule was characterized as "a concept that cannot be rejected without changing the whole fabric of our society, a fundamental idea that is at the bottom of all community life" ( Badigian v. Badigian, 9 N.Y.2d 472, 474, supra). Because of the changes envisioned by a repudiation of the rule, and because of the unprecedented disposition requested, it was suggested that the Legislature take the initiative in the area.

Seven years have passed since that decision. During that period, there has been a judicial erosion of the intrafamily immunity doctrine for nonwillful torts by courts of sister States. During that same interval, legislative intervention has not been forthcoming. While I agreed with the majority in Badigian that the doctrine should be abrogated by the Legislature, I no longer adhere to that view. As the courts of other States have indicated in abandoning it, the doctrine of intrafamily immunity for nonwillful torts was a court-created rule and, as such, the courts can revoke it. The inactivity of the Legislature since the time of our decision in Badigian illustrates the fact that the rule will be changed, if at all, by a decision of this court.

It is now apparent that the Sorrentino decision can again be reaffirmed only if we conclude that the doctrine is essential for the purpose of preserving family unity. However, the invocation of that argument is not persuasive, as it would require us to conclude that family unity is promoted when a parent is prohibited from suing a child. It seems obvious that family unity can only be preserved in this case by permitting the present action. As one commentator noted, "If the action of the parent against the child is viewed as a manifestation of the parent's right to discipline and punish his child" (Note, 33 St. John's L. Rev. 310, 319) then such an action would be a proper exercise of parental authority, which authority should not be impaired by the doctrine of intrafamily tort immunity.

A more difficult but not insoluble question is presented when the child is suing his parent. However, as Judge FULD stated in his dissenting opinion in Badigian, "A rule which so incongruously shields conceded wrongdoing bears a heavy burden of justification" ( 9 N.Y.2d 472, 475, supra). Rather than repeat the convincing arguments advanced by Judge FULD in his comprehensive dissent in Badigian, I would merely summarize the many points advanced therein for the abolition of the immunity rule.

First, the doctrine does not apply if the child is of legal age ( 9 N.Y.2d, p. 476). Moreover, the tolling provisions of the Civil Practice Law and Rules would seem to protect the right of the child to maintain the action upon reaching majority. The doctrine is also inapplicable where the suit is for property damage ( 9 N.Y. 2 d, p. 476). Thus, suits have been successfully maintained involving contracts, wills and inheritances.

Another anomaly permitted the unemancipated minor to maintain an action for personal injuries willfully or intentionally inflicted (e.g., Cannon v. Cannon, 287 N.Y. 425, 427, 429, supra). Finally, there were exceptions even in those instances where the child's suit arose as the result of an automobile accident. As Judge FULD indicated, it was a common case for the child to sue his parent's employer, even though that parent might subsequently be required to indemnify said employer. Also, it was noted that other jurisdictions had permitted suits where the unemancipated child's injuries were caused by the parent's negligent operation of a vehicle being used in connection with a business ( 9 N.Y.2d, p. 477). These exceptions neither permit reconciliation with the family immunity doctrine, nor provide a meaningful pattern of departure from the rule. Rather, they attest the primitive nature of the rule and require its repudiation. We, therefore, overrule our decisions in Sorrentino, Cannon and Badigian.

The parties recognize, as we must, that there is compulsory automobile insurance in New York. Such insurance effectively removes the argument favoring continued family harmony as a basis for prohibiting this suit. The present litigation is, in reality, between the parent passenger and her insurance carrier. Viewing the case in this light, we are unable to comprehend how the family harmony will be enhanced by prohibiting this suit.

The argument has been advanced that, by permitting suits between parent and child for nonwillful negligent acts, we will be encouraging fraudulent lawsuits. The arguments fails to explain how the possibility of fraud would be magically removed merely by the child's attainment of legal majority. Nor does the argument pretend to present the first instance in which there is the possibility of a collusive and fraudulent suit. There are analogous situations in which we rely upon the ability of the jury to distinguish between valid and fraudulent claims. The effectiveness of the jury system will pertain in the present situation. The definite and vital interest of society in protecting people from losses resulting from accidents should remain paramount. (See James, Accident Liability Reconsidered: The Impact of Liability Insurance, 57 Yale L.J. 549.)

By abolishing the defense of intrafamily tort immunity for nonwillful torts, we are not creating liability where none previously existed. Rather, we are permitting recovery, previously denied, after the liability has been established. We, therefore, conclude that the present decision should be applied retrospectively to matters which have not gone to final judgment.

The order appealed from should be reversed, the complaint reinstated, and the motion to strike the affirmative defense granted.

Chief Judge FULD and Judges SCILEPPI, BERGAN, KEATING, BREITEL and JASEN concur.

Order reversed, without costs, and case remitted to Special Term for further proceedings in accordance with the opinion herein.


Summaries of

Gelbman v. Gelbman

Court of Appeals of the State of New York
Jan 9, 1969
23 N.Y.2d 434 (N.Y. 1969)

abrogating the defense of intrafamily immunity for nonwillful torts

Summary of this case from Santoro v. Donnelly

eliminating defense of intrafamilial immunity for nonwillful torts

Summary of this case from Landreth by and Through Ore v. U.S.

abolishing bar to intrafamily lawsuits

Summary of this case from Newman v. Cole

abolishing bar to intrafamily lawsuits

Summary of this case from Broadwell by Broadwell v. Holmes

In Gelbman v Gelbman (23 N.Y.2d 434), building on Judge FULD'S memorable dissent in Badigian v Badigian (9 N.Y.2d 472), this court unqualifiedly and unanimously revoked a rule of this State which theretofore had prohibited child-parent suits for nonwillful torts.

Summary of this case from Nolechek v. Gesuale

In Gelbman, we noted that the principal reason advanced in support of this doctrine — preservation of family harmony — had been effectively removed in that case by New York's compulsory automobile insurance.

Summary of this case from Holodook v. Spencer

In Gelbman v Gelbman (23 NY2d 434), the Court of Appeals abolished the defense of intrafamily immunity, a defense that had barred suits between unemancipated children and their parents to recover damages for nonwillful torts, and allowed a mother to maintain a negligence action against her unemancipated son to recover damages for injuries she sustained while a passenger in an automobile driven by the son.

Summary of this case from McCabe v. Dutchess County

In Gelbman v. Gelbman (23 N.Y.2d 434, 437-438, supra), the court (per BURKE, J.) adopted "the convincing arguments advanced by Judge FULD in his comprehensive dissent in Badigian", but was careful to point out that "the present litigation is, in reality, between the parent passenger and her insurance carrier" and that " viewing the case in this light, we are unable to comprehend how the family harmony will be enhanced by prohibiting this suit" (last emphasis supplied).

Summary of this case from Lastowski v. Norge Coin-O-Matic

In Gelbman v. Gelbman (23 N.Y.2d 434), the Court of Appeals abolished the defense of intrafamily tort immunity for nonwillful torts, and rejected the proposition that intrafamily litigation would undermine parental authority and disrupt the peace of the family and thus contravene public policy.

Summary of this case from Graney v. Graney

In Gelbman the Court of Appeals emphasized that it was not creating a liability where none existed, but was merely "permitting recovery, previously denied, after the liability has been established" (p. 439).

Summary of this case from Guilmette v. Ritayik

In Gelbman v Gelbman (23 NY2d 434 [1969]), an action in negligence by a parent against her unemancipated son arising out of an automobile accident, the Court of Appeals abolished intrafamily immunity for nonwillful torts.

Summary of this case from Jacobs v. Newton

In Gelbman v. Gelbman (23 N.Y.2d 434), an action in negligence by a parent against her unemancipated son arising out of an automobile accident, the Court of Appeals abolished intrafamily immunity for nonwillful torts.

Summary of this case from Jacobs v. Newton

In Gelbman v Gelbman (23 NY2d 434, 439 [1969]), the Court of Appeals "abolish[ed] the defense of intrafamily tort immunity for nonwillful torts."

Summary of this case from Ruffing v. Union Carbide Corp.

In Gelbman v. Gelbman (23 N.Y.2d 434, 439), the Court of Appeals "abolish[ed] the defense of intrafamily tort immunity for nonwillful torts".

Summary of this case from Ruffing v. Union Carbide Coporation

In Gelbman v Gelbman (23 N.Y.2d 434, supra), the Court of Appeals reinstated a complaint in an action brought by the defendant's mother against the defendant for negligence in connection with an automobile accident in which the defendant son was one of the drivers and the plaintiff mother was his passenger.

Summary of this case from Hurst v. Titus

In Gelbman v Gelbman (23 N.Y.2d 434) a mother who was a passenger while her son was driving the family car was permitted to sue him for causing an accident which injured her. Parents and children, by the court's ruling, could sue each other for negligence.

Summary of this case from Allstate Ins v. Reliance Ins. Co.

In Gelbman v. Gelbman (23 N.Y.2d 434), the Court of Appeals abrogated the long-standing doctrine of intrafamily tort immunity.

Summary of this case from Orphan v. Relyea

In Gelbman (supra, p. 438) the court definitely stated: "The parties recognize, as we must, that there is compulsory automobile insurance in New York * * * Viewing the case in this light, we are unable to comprehend how the family harmony will be enhanced by prohibiting this suit."

Summary of this case from Graney v. Graney

In Gelbman the Court of Appeals, in a unanimous decision, has abolished the defense of interfamily immunity for nonwillful torts.

Summary of this case from Graney v. Graney

In Gelbman the courts revoked a long standing rule of the State of New York prohibiting child-parent suits for nonwillful torts.

Summary of this case from Graney v. Graney

In Gelbman (pp. 437, 439), the court overruled the decisions in Sorrentino, Cannon and Badigian, and it held intrafamily suits for nonwillful torts are permissible.

Summary of this case from Howell v. Perri
Case details for

Gelbman v. Gelbman

Case Details

Full title:ADELE GELBMAN, Appellant, v. JAMES D. GELBMAN, Respondent

Court:Court of Appeals of the State of New York

Date published: Jan 9, 1969

Citations

23 N.Y.2d 434 (N.Y. 1969)
297 N.Y.S.2d 529
245 N.E.2d 192

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