Cunningham v. McNair

Lupiano, J. Plaintiff, a New York resident, was a passenger in an automobile owned by. a New York resident and driven by another New York resident on a trip which began in New York and was due to terminate in New York. While driving through Maryland on April 10, 1971, the New York vehicle was involved in an accident with a vehicle owned by defendant Avis Rent-A-Car, Inc. (hereinafter Avis), which was registered in Virginia, and was leased from Avis in Maryland by a resident of Mississippi. Defendant Avis, after the commencement of the instant action, moved for summary judgment dismissing the complaint and cross complaint against it on the ground that neither Maryland nor Virginia law gives rise to a cause of action sounding in vicarious liability. Special Term in denying this motion applied New York law (Vehicle and Traffic Law, § 388) rather than Maryland law. The critical issue is thus, whether under the circumstances of this case, New York law rather than the law of the situs of the accident, applies. In Virginia and Maryland, the law is to the effect that the mere ownership of a motor vehicle does not render the owner liable for an accident which occurs while the vehicle is being operated by another person, unless the owner is present or where the driver is acting as the owner’s agent, servant or employee (Taylor v Wesley Freeman, Inc., 186 Md 474 [1946]; Lumbermens Mut. Cas. Co. v Indemnity Ins. Co. of North Amer., 186 Va 204 [1947]). New York, however, imposes vicarious liability on an owner for the misdeeds of his vehicle’s driver (Vehicle and Traffic Law, § 388). The traditional rule that the substantive rights and liabilities arising out of a tortious occurrence are determined by the law of the place of the tort, having its inception in the vested [548] rights doctrine and being governed by generalities which do not state the practical considerations involved, was emphatically undermined by Babcock v Jackson (12 NY2d 473 [1963]) which adopted the enlightened doctrine of "center of gravity” or "grouping of contacts”. "The 'center of gravity’ or 'grouping of contacts’ doctrine adopted by this court in conflicts cases involving contracts impresses us as likewise affording the appropriate approach for accommodating the competing interests in tort cases with multi-State contacts. Justice, fairness and 'the best practical result’ (Swift & Co. v Bankers Trust Co., 280 NY 135, 141, supra) may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation” (Babcock v Jackson, supra p 481). The circumstances underlying Babcock v Jackson are noteworthy for our purposes in that the plaintiff, a New York resident, left for a weekend car trip from New York to Canada which was to end in New York. The fact that the accident occurred in Ontario, Canada was a purely adventitious circumstance. In Neumeier v Kuehner (31 NY2d 121 [1972]), the defendant’s intestate, Arthur Kuehner, a resident of New York, drove his automobile from Buffalo to Fort Erie in Ontario where he picked up Amie Neumeier, who lived in that town with his wife and children. The trip was to take Neumeier from his home in Ontario, to Long Beach in Ontario, and back again to Neumeier’s home in Ontario. However, on the way to Long Beach, the car was struck by a train and both Kuehner and his guest-passenger were killed. Applying the Babcock v Jackson rationale, the Court of Appeals concluded that Ontario law should govern, which law happened to be of lex loci delictus. As Judge Breitel aptly observed in his concurring opinion: " lex loci delictus is unsoundly applied if it is done indiscriminately and without exception. It is still true, however, that lex loci delictus is the normal rule, as indeed, Chief Judge Fuld noted in the Tooker case (24 NY2d 569, supra), to be rejected only when it is evident that the situs of the accident is the least of the several factors or influences to which the accident may be attributed (for discussion, see dissenting opn. in Tooker v Lopez, 24 NY2d, at pp 595-596) * * * Consequently, I agree that there should be a reversal and the defenses allowed to stand. The conclusion, however, rests simply on the proposition that plaintiff has failed by her allegations to establish that the relationship to this State was [549] sufficient to displace the normal rule that the lex loci delictus should be applied, the accident being associated with Ontario, from inception to tragic termination, except for adventitious facts and where the lawsuit was brought” (Neumeier v Kuehner, supra pp 131-132). Applying an "interest analysis” test to this case, it is clear that the State of New York has the most significant relationship with the issues presented. Maryland, the situs of the accident, has no true involvement in this case since neither the owners, drivers nor passengers of either vehicle were residents of Maryland, nor was either vehicle registered in that State. Further, the State of Virginia has no genuine involvement in this case simply because the defendant Avis’ vehicle was registered there. The basic purpose of the rule enunciated in Babcock v Jackson (supra), is eloquently ex-prés ed by Judge (later Chief Judge) Fuld in his quotation of Chief Judge Desmond’s statement in Kilberg v Northeast Airlines (9 NY2d 34, 39): ’’Modern conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move. * * * An air traveler from New York may in a flight of a few hours’ duration pass through * * * commonwealths [limiting death damage awards]. His plane may meet with disaster in a State he never intended to cross but into which the plane has flown because of bad weather or other unexpected developments, or an airplane’s catastrophic descent may begin in one State and end in another. The place of injury becomes entirely fortuitous. Our courts should if possible provide protection for our own State’s people against unfair and anachronistic treatment of the lawsuits which result from these disaster” (Babcock v Jackson, supra, p 480). Section 388 of the Vehicle and Traffic Law imposing vicarious liability upon the owner of a motor vehicle has been held by case law not to be necessarily limited to accidents occurring within the State of New York (Matter of Sentry Ins. Co. [Amsel], 36 NY2d 291 [1975]; Farber v Smolack, 20 NY2d 198 [1967]). The Court of Appeals has most recently indicated in Matter of Sentry Ins. Co. (Amsel) (supra, p 295) that the legislative history of section 388 of the Vehicle and Traffic Law "indicates that the Legislature intended to enlarge the vehicle owner’s vicarious liability and not to draw the line at the border.” It is significant that the defendant Avis is a nationwide car rental agency that maintains fleets of cars in almost every State. Under these circumstances the [550] place of said defendant’s incorporation or the particular location where one of its vehicles was rented appears to be of little import. Under these circumstances the only redress available to plaintiff as the injured party and a resident of the State of New York is that granted to her by the afoi*e-mentioned case law under the auspices of section 388 of the Vehicle and Traffic Law. Belisario v Manhattan Motor Rental (48 AD2d 477 [1st Dept., 1975]) is fully supportive of this conclusion. Application of the Babcock doctrine in that case led to the conclusion that the law of New Jersey applied under the circumstances therein. It was aptly observed that Belisario was not an "in transit” case but a "fixed location” case. It was also further observed that Belisario was not a case where protection was required "for our own State’s people against unfair and anachronistic treatment”. Accordingly, the order of the Supreme Court, New York County (Gellinoff, J.), entered February 13, 1975, should be affirmed without costs and disbursements.