53 A.D.2d 391 | N.Y. App. Div. | 1976
Lead Opinion
On July 19, 1965, James Driscoll, then 11 years old, was severely injured when in the course of roller skating on Second Avenue, at its intersection with East 90th Street, Manhattan, the rear right wheel of a New York City Transit Authority (hereinafter NYCTA) bus, proceeding southerly on Second Avenue, ran over him. Suit to recover for personal injuries was instituted against the NYCTA on or about July 28, 1966. A separate suit against Consolidated Edison Com
At the commencement of trial on September 9, 1975, plaintiffs informed the court that they had just settled their action against NYCTA for $50,000. At this time the infant plaintiff was over 21 years of age. Over ConEd’s objection, premised on the Dole v Dow rule, the trial court granted plaintiffs’ motion to sever their action against NYCTA. The next day, ConEd served third-party pleadings upon NYCTA, claiming that plaintiff James Driscoll was injured either through his own or through NYCTA’s negligence, without any fault on ConEd’s part, and seeking indemnification from the authority. At the trial, it was plaintiffs’ contention that James Driscoll was roller skating easterly on 90th Street, in the gutter, that he tripped over an Edison cable running from an excavation made to repair a gas leak on the northwest corner of the intersection to a lamp post on the southwest corner; and that he was precipitated under the wheel of the southbound bus on Second Avenue. It was ConEd’s contention that plaintiff was roller skating, not on the street, but down the south sidewalk of 90th Street and that the accident occurred when plaintiff roller skated off the south sidewalk into the path of the bus.
Subdivision (a) of section 15-108 of the General Obligations Law in effect when this case came on for trial provides that "[w]hen a release * * * is given to one of two or more persons liable or claimed to be liable in tort for the same injury * * * it does not discharge any of the other tortfeasors from liability for the injury * * * unless its terms expressly so provide, but
Also, it was error to permit a diagram prepared by police officer Horel, who was not a witness to this unfortunate accident, to be admitted into evidence which tended to show by continuing arrows thereon that plaintiff James E. Driscoll, Jr. was roller skating in the street rather than on the sidewalk prior to the accident. This was not a record kept in the ordinary course of business and constituted hearsay evidence which was otherwise inadmissible. On the basis of all the afore-mentioned errors, a new trial is clearly warranted.
By notice of motion dated September 25, 1975, NYCTA
Accordingly, the order of the Supreme Court, New York County (Sanders, J.), entered October 10, 1974, which, inter alia, vacated the settlement of this action and restored the action to the trial calendar and the order of said court (Kaplan, J.), entered January 14, 1976, which granted the motion of the third-party defendant New York City Transit Authority to dismiss the third-party complaint of defendant and third-party plaintiff Consolidated Edison Company of New York, Inc., should be affirmed. The judgment of the Supreme Court, New York County (Kaplan, J.), entered October 9, 1975, which adjudged, after a jury trial, that plaintiff James E. Driscoll, Jr., recover of ConEd the sum of $1,250,367.50 and that plaintiff Nora Driscoll recover of ConEd the sum of $200,000, should be reversed on the law and the matter remanded for a new trial with costs and disbursements to abide the event.
In the Practice Commentary to section 15-108 of the General Obligations Law in the 1975-1976 pocket part of McKinney’s Consolidated Laws of New York, Dean Joseph M. McLaughlin states:
"The 1974 amendment to this section is designed to encourage settlement in tort cases, something, which had become troublesome after the decision in Dole v Dow Chemical Co., 1972, 30 N.Y. 2d 143, 331 N.Y.S. 2d 382, 282 N.E. 2d 288. Dole held that where A and B were joint tortfeasors but plaintiff sued only A, A could implead B for an equitable apportionment of liability. Following Dole, it was held that if P sued A and B, and A later settled with P, B could, nevertheless, implead A back into the action for a Dole apportionment. See e.g., Blass v. Hennessey, 1974, 44 A.D. 2d 405, 355 N.Y.S. 2d 506. This would obviously chill A’s desire to settle the case, and the purpose of the amendment is to rekindle that desire.
"The first portion of section 15-108(a) is taken from the former General Obligations Law, section 15-108, and is designed to assure a plaintiff that he may settle his claim with one of several tortfeasors without prejudicing his right to pursue the other tortfeasors.
"To understand the new statute, it may help to begin with a hypothetical: assume that P is injured because of the negligence of A and B, two car drivers. Assume, further, that A settles with P for $10,000. This settlement assures A that he has bought his peace inasmuch as subdivision (b) of the new statute states that A is relieved from liability to B for contribution, assuming, of course, that the settlement was in good faith.
*395 "The case will then proceed to trial against B who remains free to demand that the jury make a Dole apportionment of the damages between him and A (even though A is no longer a party). Assume that the jury finds a $50,000 verdict for P against B, but states that the 'equitable share of the damages’ between A and B should be 50% each. Subdivision (a) of this section directs the court to reduce the verdict by the amount of the settlement or the amount of A’s equitable share—whichever is greater. In the hypothetical, P’s verdict against B would be reduced to $25,000. P, therefore, will recover a total of $35,000 ($10,000 from A, and $25,000 from B), and not the $50,000 to which jury said he was entitled. This is a risk the plaintiff takes when he elects to seize the bird in the hand by settling with one of the tortfeasors.”
Dissenting Opinion
I would modify the judgment on appeal to the extent of crediting Con Ed with the sum of $50,000, the amount of NYCTA’s settlement, and otherwise affirm said judgment and both orders on appeal.
On the instant record and upon the fair and appropriate instructions by the Trial Judge, the jury was fully justified in holding Con Ed liable under the doctrine of "absolute nuisance” for obstructing a public roadway without a requisite license. Accordingly, I see no reason to require plaintiffs to retry this case against said defendant.
Under the circumstances of this case, the Trial Judge’s failure to give effect to section 15-108 of the General Obligations Law did not prejudice or impair Con Ed’s position.
The credible evidence, accepted by the jury, placed the
"We do not think—Con Edison does not think it has been proved that this bus was responsible for this accident. We think the bus was innocent; so we are not coming to you to say, 'Well we will say it was the bus, not Con Edison.’ Perhaps that would be facile, an easy way out of it for us. We are not doing that.
"You have listened to the facts. There is nothing in this record that would indicate that the bus or the Transit Authority was in any way responsible. That is my view of the record. It does not have to be yours.
"I simply want you to know that is our view of the record.”
Lastly, Officer Horel’s rough sketch, even if erroneously admitted, was clearly recognized as innocuous.
In light of the foregoing, and since the record before us would not support an apportionment against NYCTA in excess of the amount it paid for a release, a reduction of plaintiffs’ claim against Con Ed by $50,000 is the only corrective action which is required in this case.
Birns, Silverman and Lane, JJ., concur with Lupiano, J.; Murphy, J.P., dissents in part in an opinion.
Orders, Supreme Court, New York County, entered on October 10, 1974, and January 14, 1976, affirmed, without costs and without disbursements; and judgment of said court, entered on October 9, 1974, reversed, on the law, and the matter remanded for a new trial, with $60 costs and disbursements of this appeal to abide the event.