29 N.Y.2d 44 | NY | 1971
Lead Opinion
The case before us for decision represents yet another variant from the pattern of negligence actions in which the principle of collateral estoppel has been successfully asserted following prior litigation of one or more of the underlying negligence issues.
The plaintiff administratrix, suing both for the wrongful death and the conscious pain and suffering of her daughter, who died as a result of injuries sustained in a one-car accident, seeks recovery against Putnam County and the defendant Prodoti, charging defendant county with negligent maintenance of the highway and defendant Prodoti with negligently interfering
Subsequent to the determination in the District Court, defendant Prodoti’s motion to amend his answer so as to interpose the defenses of res judicata and collateral estoppel was granted and a similar motion by defendant county was later denied, without prejudice. Upon appeal by plaintiff, the Special Term order granted on Prodoti’s motion was reversed, the Appellate Division, Second Department, holding that ‘ ‘ the defense of res judicata which respondent seeks to interpose in his amended answer is not available against appellant, who was not a party or in privity with the defendant in the litigation which resulted in the prior judgment ” (30 A D 2d 929). Following the decision of this court in Schwarts v. Public Administrator (24 1ST Y 2d 65), the defendants renewed their motions, Special Term granted them, and, upon appeal, the Appellate Division affirmed, without opinion, Presiding Justice Christ dissenting in a memorandum in which Justice Hopkins joined, considering “ that before collateral estoppel may be used against a party, that party, or one in privity with him, must have had at least one opportunity to litigate the issues involved ”; and that plaintiff was neither a party to the prior litigation nor in privity with the defendant there sued (35 A D 2d 578, 579). The case comes to us from the order deciding the second appeal.
In each of the cases considered to have established, and in successive steps expanded the more recent concept of res judicata and collateral estoppel, there had previously been a recovery against the party against whom the rule, in one or the other of its forms, was applied in the later action. Thus, in Good Health Dairy Prods. Corp. v. Emery (275 N. Y. 14) the defendant’s driver, upon establishing that he was free from any negligence, had previously recovered against the plaintiff owner. In Cummings v. Dresher (18 N Y 2d 105) the plaintiffs, owner and operator, suing the owner and operator of the second automobile involved, had previously been found negligent in an action brought by a passenger in the second automobile. In B. R. DeWitt, Inc. v. Hall (19 N Y 2d 141), where the rule was affirmatively applied to mandate a recovery, the plaintiff
In the case before us, it is sought, for the first time in this court, to apply the principle of collateral estoppel to a plaintiff who was not a party to the prior litigation. Indeed, defendant Prodoti is the only party to this action who was' also a party in the Federal case. The pattern, above alluded to, of application of the principle, defensively at least, only to bar recovery by parties against whom judgment upon the same issues had previously been had, did not emerge fortuitously, but parallels and reflects the cognate rule laid down in the earlier cases (see, e.g., Liberty Mut. Ins. Co. v. Colon & Co., 260 N. Y. 305, 308, 312), and consistently reiterated in the later ones, as “the sound principle that, where it can be fairly said that a party has had a full opportunity to litigate a particular issue, he cannot reasonably demand á second one ’ ’ (Schwartz v. Public Administrator, 24 N Y 2d 65, 69, supra; B. R. DeWitt, Inc. v. Hall, 19 N Y 2d 141,145, supra; Cummings v. Dresher, 18 N Y 2d 105, 107-108, supra; Israel v. Wood Dolson Co., 1 N Y 2d 116, 119; Good Health Hairy Prods. Corp. v. Emery, 275 N. Y. 14, 18, supra).
It cannot be gainsaid that plaintiff administratrix did not have a full and fair opportunity, nor, indeed, any opportunity, to contest the issues tendered in the District Court. The circumstance that, she and the defendant absentee owner in that case are wife and husband, as well as decedent’s parents and only distributees, is not of compelling legal significance. Thus, we are bound to treat as completely tenuous respondent county’s contention that if the mother had ‘ ‘ knowledge or other proof * * * she had the opportunity and duty to present the same ” at the District Court trial. Respondent does not substantiate its contention in respect of either ‘ ‘ opportunity ” or “ duty ’ ’
We find no greater substance in the argument that plaintiff’s representative capacity is not meaningful and that, disregarding it, we must look only to the interests of the parents as distributees and in some fashion find that both are bound by the determination rendered against the father as an absentee owner. The legal differences between individuals and estate representatives are practical as well as technical, and too well established to require discussion. This being so, it is unnecessary to do more than note the additional and subsidiary consideration that in an action for conscious pain and suffering, and to a lesser degree in a wrongful death action, an executor or administrator represents interests additional to those of the distributees.
If, nevertheless, we take account of the possibility of a recovery by the administratrix and the ultimate payment of a share therein to the father, who has previously been found negligent by reason of the purely vicarious liability imposed by statute (Vehicle and Traffic Law, § 388), there is nothing that is either new or deplorable in such a result. The statute which imputes to an absentee owner the negligence of his driver, for the purpose of imposing liability to an injured third party, does not impute contributory negligence to such an absentee owner in his action to recover his own damage (Continental Auto Lease Corp. v. Campbell, 19 N Y 2d 350; Mills v. Gabriel, 284 N. Y. 755). Thus, in Continental, the absentee owner recovered its property damage sustained in a two-car accident although its own and the other driver were found negligent; and in Brooks v. Horning (27 A D 2d 874, mot. for lv. to app. dsmd. 20 N Y 2d 760) the court recognized the rights of both the absentee owner and his driver to recover, although the passengers in the car had recovered against the owner in an action to which the driver was not a party. It was similarly, and correctly held in Willsey v. Strawway (44 Misc 2d 601,
The order of the Appellate Division should be reversed, with costs, and the case remitted to Special Term for further proceedings in accordance with this opinion, and the question certified answered in the negative.
Dissenting Opinion
I would affirm. The public interest in preventing repetitious litigation warrants barring the Molino family from a second contest of the same issues. In Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304, 306-307, Judge Cardozo wrote “ A judgment in one action is conclusive in a later one not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interest established by the first (Cromwell v. County of Sac., 94 U. S. 351; Reich v. Cochran, [151 N. Y. 122]) ”. In other words, Judge Cardozo was saying that if the issue or issues in the second action were material and necessarily involved in the first action, the threat of impairment must be present.
In this case the determination made on each of the several issues in the former suit was essential to the judgment, therefore, all issues are precluded from further contest. If Prodoti had been denied recovery in the former suit because he was contributorily negligent, the Molinos could bring suit and collateral estoppel would not lie because the finding that Carol Ann Molino was negligent was not “ necessary ” or “ essential to the earlier judgment ”. (See Rosenberg, Collateral Estoppel in New York, 44 St. Johns L. Rev. 165, 182.) Here, on the other hand, the finding of freedom from contributory, negligence supported the judgment.
Of course, Joseph Molino’s liability is merely derivative. He could not be held liable in the former suit unless his daughter, Carol Ann Molino, the operator of the car owned and insured by Joseph Molino had not only been found to be negligent, but in addition that the plaintiff Prodoti had to prove he was free
A resort to abstract notions and generalities relating to privity or causes of action for wrongful death or pain and suffering is not appropriate. The latter are just tags — all are suits in negligence. Privity ‘ ‘ is merely a word used to say that the relationship between the one who is a party on the record and another is close enough to include that other within the res judicata” (Bruszewski v. United States, 181 F. 2d 419, 423 [3d Cir; conc. opn.]). Carol Ann Molino would have been a defendant in the former suit as an insured if she were alive and would have been represented by the same counsel. Her mother and her father as distributees, and her creditors, if any, now cannot argue that there is a lack of privity because Carol Ann died after the accident and before she was made a party. Their interests in the accident depend on whatever favorable claims on the issues of negligence Carol Ann Molino as the driver-participant could establish to the satisfaction of the jury in the former suit. Therefore, it is necessary to consider this case on the issues that were presented, tried and decided in the Federal court.
The only three essentials to be established are: 1) that the issues in question are identical with the issues in the prior action; 2) that it was necessary to the earlier determination, and 3) that it was “ actually litigated ”. (Restatement, Judgments, § 68 [1942]; see Schwartz v. Public Administrator, 24 N Y 2d 65, 69, 72, 74; B. R. DeWitt, Inc. v. Hall, 19 N Y 2d 141, 148.) To that end we must turn to the record in the former
The charge of Judge Mansfield in the Federal court was thorough. He stated that the theory of the plaintiff’s case was that the accident was caused by negligence on the part of Carol Ann Molino in operating the auto at a dangerous and excessive rate of speed and in a reckless manner. He pointed out that the defendant denied any such negligence and contended that the plaintiff has failed to show that he himself was free of contributory negligence. In order to recover, the Judge advised the jury, the plaintiff had to bear the burden of establishing by a fair preponderance of evidence three elements: 1) that the driver of the car was negligent; 2) that her negligence was the proximate cause of his injuries, and 3) he himself was free from contributory negligence. He discussed in detail the standards of due care. He then summarized the high points of the evidence given by the plaintiff, his cross-examination and the evidence of all surrounding circumstances found immediately after the accident and attested to by the police officers, and photographs. He then emphasized that the defendant questioned the plaintiff’s credibility and added that the defendant argued that the marks on the road rather than indicating reckless and excessive speed, established the fact that the defendant, Carol Ann Molino, had applied the brakes for a distance of 225 feet. The defendant argued that the cross-examination of Prodoti, the plaintiff, indicated that the accident might have been caused by some other cause, whether it was a defect in the car or conduct on the plaintiff’s part, rather than of negligence on the part of the driver.
Judge Mansfield then went on to explain that even if the driver was negligent the plaintiff had to convince them that her negligence was the proximate cause of the plaintiff’s injuries, that is, that there must be a causal connection between any negligence on the part of the driver and the plaintiff’s injuries. He stated “proximate cause of an injury is a cause which in a natural and continuous sequence unbroken by any new cause produces the injuries and without which the injuries would not have occurred.” The court again carefully instructed
Thus the trial court clearly indicated to the jury that if Prodoti could be found to be responsible in the slightest degree for contributory negligence, he could not recover. In conclusion the Judge admonished the jury on their obligation to apply common sense, experience, judgment and their observations in the courtroom to adjudge the credibility of Prodoti and indeed to take into consideration whether the witness was motivated by some other interest rather than in telling the truth. As to the critical cross-examination, the record shows that the issue of Prodoti’s contributory negligence was fully developed on cross-examination by the defense counsel. Prodoti admitted to defense counsel that Carol Ann Molino and he had ah argument and that she was upset because he had refused to drive to Mt. Kisco with her to visit her girl friend in a hospital. He
In conclusion it is only necessary to point out that the Molinos had a “ full and fair opportunity ” in a trial on issues that are identical. Under these circumstances the defendants have established the sole prerequisites for invoking collateral estoppel (Schwarts v. Public Administrator, supra). In that case the danger of ‘ ‘ inconsistent results which are always a blemish on a judicial system ” was eliminated.
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge Fund and Judges Bergan and Breitel concur with Judge Gibson; Judge Burke dissents and votes to affirm in a separate opinion in which Judges Scileppi and Jasen concur.
Order reversed, etc.
