Derby v. Prewitt, 12 N.Y.2d 100, 187 N.E.2d 556, 236 N.Y.S.2d 953 (1962) (three judges dissenting)

Simet, Donald P.

English

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Buffalo Law Review Volume 13 Number 1 Article 47 10-1-1963 Torts—Constructive Release of Co-Tortfeasors Fails Donald P. Simet Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Torts Commons Recommended Citation Donald P. Simet, Torts—Constructive Release of Co-Tortfeasors Fails, 13 Buff. L. Rev. 267 (1963). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol13/iss1/47 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. COURT OF APPEALS, 1962 TERMAn amended statute, explicit in terms and leaving no room for doubton any point, would prevent further injustice.3 1Ronald B. FelmanCONSTRUCTIVE RELEASE OF Co-ToRTFEASORS FALLSFollowing the granting of a general release in an auto negligence claim,the plaintiff sustained aggravation of her injuries through maltreatment. In anaction to recover against the alleged malpractitioner, the bar of a general releasegranted a fellow tortfeasor was raised. Upon appeal the Court of Appeals held,where a general release is granted to one who has not acted jointly, in concert,with his co-tortfeasors, the release will not by operation of law discharge the lia-bilities of such co-tortfeasors. Instead, availability of the release in their defensepresents questions of fact concerning the adequacy of the compensation hadby the grantor or the intention of the grantor to surrender all claims for lessthan full compensation. Both issues are to be borne by the plaintiff. Derby v.Prewitt, 12 N.Y.2d 100, 187 N.E.2d 556, 236 N.Y.S.2d 953 (1962) (threejudges dissenting).English common law courts fashioned the rule of constructive release basedupon the concept of joint tort liability. Concerted action served the commonlaw courts as a link by which the individual joint tortfeasor could be heldvicariously liable for the entire damage produced by such conduct.1 Thisliability was neither predicated upon causation in fact,2 nor upon 'foreseeabilityof the damage that flowed from the act.3 The gist of the concept was the mutualagency by which the act of one became the act of all.4 Since any one jointtortfeasor was liable for the total damage by imputation of the fault of all, hisrelease was the release of all.r Of course this conclusion assumes that full com-pensation has been had for the release. At common law there was some excusefor such an assumption. Releases were then sealed instruments, recitals in whichwere conclusive. 6 Confusion over the meaning of a joint tortfeasor, the termsas used in various contexts, led to the extension of the rule of release by oper-ation of law to mere co-tortfeasors. 7 The corresponding rule in the law ofjudgments did not share this development. Unsatisfied judgments against oneco-tortfeasor did not bar recovery against other co-tortfeasors.8 Harsh rulespermit of harsh exceptions, so that the courts in order to mitigate the rigorousresult began by construction to view releases containing a reservation of claims31. 16 St. John's L. Rev. 108 (1941).1. Duck v. Mayeu, [18921 2 Q.B. 511; Prosser, Torts 234 (2d ed. 1955).2. Prosser, Joint Torts and Several Liability, 25 Cal. L. Rev. 413 (1932).3. Thompson v. Johnson, 180 F.2d 431 (5th Cir. 1950).4. Prosser, Torts 225, 234 (2d ed. 1955).5. Southern Pacific Co. v. Raish, 205 F.2d 389 (9th Cir. 1953); Ludo v. Curran,2 N.Y.2d 157, 139 N.E.2d 133, 157 N.Y.S.2d 948 (1956).6. Williston, Contracts 3140 (1920).7. Prosser, Torts 233, 242-43 (2d ed. 1955).8. Id. at 241, 243.BUFFALO LAW REVIEW ,against others as covenants not to sue.9 The law would give effect to the in-tention of the grantor without belaboring the contradiction in terms, a general-reserved release. What had first been assumed by the courts, then effectedthrough exceptions, finally became the rule, itself. Satisfaction and intentionwere to guide the efficacy of a release among co-tortfeasors. Today there is aquickening trend to abolish the rule of constructive release even in its appli-cation to joint tortfeasors.10Thirty years ago the Court of Appeals decided Milks v. McIver," a caseseemingly four-square with the present one. There, judge Lehman speakingfor the court held that a general release granted to a negligent motorist wasa bar to recovery against a malpractitioner for aggravation. The court so heldin the face of argument pressing the distinction between joint and co-tortfeasors.Recently, the Court of Appeals in interpreting a statutory prohibition in theWorkmen's Compensation Law against unauthorized settlement of third partyactions allowed recoveries against both the initial and subsequent wrongdoers,despite the fact that both recoveries were for the identical and all-inclusivefatal injury.'2 However, the decision is too rooted in the peculiarities of com-pensation law, especially the compromise between liability and compensation,to be of great precedential value.In the present case the majority, in trading the rule of constructive releasefor the more fundamental standards of satisfaction and intention, stronglyattacked, both in argument and authority, automatic bar even as applied toreleases among joint tortfeasors. The obvious prediction is that this vestigeof constructive release simply awaits a proper case to be interred. A fortiori,the majority found the application of automatic bar in the case of co-tortfeasorsobjectionable, since it is easily demonstrated that the liabilities of co-tortfeasorsare, at least in extent, distinct. The malpractitioner did not cause the autoaccident. What point the dissenting opinion had, concerned the majority'sevasion of the Milks precedent and the difficulties of application presented bythe newly adopted broad standards. Milks should have been expressly overruled.Attempted distinction of the case by fact differentiation and by imputationof a second decisional ground seems unworthy of an otherwise well reasonedand convincing majority opinion. Judge Lehman in the Milks decision did notorder a trial of the question of whether or not a complete satisfaction had beenobtained by the plaintiff. Yet, the majority now says that they, themselves,9. Gilbert v. Finch, 173 N.Y. 455, 66 N.E. 133 (1903).10. Eagle Lion Films, Inc. v. Loew's, Inc., 219 F.2d 196 (2d Cir. 1955); Daniel v.Turner, 320 S.W.2d 135 (Ky. 1959); Breen v. Peck, 28 N.J. 351, 146 A.2d 665 (1958);Riley v. Industrial Finance Service Co., 157 Tex. 306, 302 S.W.2d 652 (1957); Jukesv. North American Van Lines, Inc., 181 Kan. 12, 309 P.2d 692 (1957); Weldon v. Lehmann,226 Miss. 600, 84 So. 2d 796 (1956); Gronquist v. Olson, 242 Minn. 119, 64 N.W.2d 159(1954).11. 264 N.Y. 267, 190 N.E. 487 (1936); Rapp v. Myers, 291 N.Y. 709, 52 N.E.2d596 (1943) (per curiam).12. Meachem v. New York Central R.R. Co., 8 N.Y.2d 293, 169 N.E.2d 913, 206N.Y.S.2d 569 (1960); Note, 11 Buffalo L. Rev. 284 (1961).268COURT OF APPEALS, 1962 TERMmust have that question tried before final disposition of the case. Nor does thefact that the plaintiff had in the Milks case released the negligent motorist onlyafter sustaining aggravation of his initial injury distinguish a general rule whichapplies automatically given the simple identification of co-tortfeasors. Secondly,the dissenters point to the difficulty of measuring a full satisfaction. However,tort verdicts do this work, perfectly or imperfectly, day in and day out. Accom-modation of the law of contribution to the new standards does, however, remainin need of change.' 3 Again as in so many of the advances made by the Courtof Appeals the charge of judicial legislation has been leveled in the dissent.But as Chief Judge Desmond has observed, judicial change of judicial rulesis all too proper. It is enough to say that today's change was partial, inter-stitial, and overdue.Mr. Justice Rutledge has admirably summarized the deficiencies of thetraditional rule:The rule's results are incongruous. More often than otherwise theyare unjust and unintended. Wrongdoers who do not make or share inmaking reparation are discharged, while one willing to right the wrongand no more guilty bears the whole loss. Compromise is stifled,first, by inviting all to wait for the others to settle and, second, becauseclaimants cannot accept less than full indemnity from one when doingthat discharges all. Many, not knowing this, accept less only to findlater they have walked into a trap. The rule shortchanges the claimantor overcharges the person who settles, as the recurring volume andpattern of litigation show. Finally, it is anomalous in legal theory,giving tortfeasors an advantage wholly inconsistent with the natureof their liability.14The metaphysical concept of constructive release is too far removed from therealities of an intelligent, bargained settlement. The bargain is restricted toall or nothing at all. Every number and kind of claim must, according to theabsolute bar, be resolved. Compromise of liability in the sense of a quid proquo is prevented. Needs of the grantor for present reparation, consideration ofthe defendant's solvency, the relative costs and conveniences between litigationand settlement of the various claims, all bearing on the decision to settle, haveto be abandoned or else. Nor can the bargain be intelligent. The law mayrevisit consequences on the released tortfeasor for injuries that subsequentlyarise, some unforseeable altogether. Regarded as a surrender of existent claims,the release would be a more intelligent instrument. The constructive releasederived much of its vitality from the imperfections, in efficiencies and fears sur-rounding damage apportionment. 15 Failure to solve such difficulties, as Mr.Justice Rutledge pointed out, ought to be charged against the wrongdoer, notagainst the wronged. At the same time these difficulties are irrelevant to the13. N.Y. Law Revision Commission Reports 21 (1952).14. McKenna v. Austin, 134 F.2d 659, 662 (D.C. Cir. 1943).15. Prosser, Torts 224-25 (2d ed. 1955).269BUFFALO LAW REVIEWconcept of fault, which is the principle at stake. With ingenuity the difficultieslargely disappear. But now that the court has made it so clear that the liabil-ities of joint and co-tortfeasors are not necessarily identical with the othermembers of their respective classes, it is hoped that the law of contributionwill be updated accordingly by legislative change.Donald P. SimetPRODUCTS LIABILITY CASES-PRVITY No LONGER REQUIREDAn American Airlines carrier crashed in New York killing plaintiff'sintestate, a passenger. An action for wrongful death was commenced againstAmerican for negligence, and against both the manufacturer of the aircraft,Lockheed Aircraft Corporation, and the manufacturer of an allegedly defectivealtimeter in the said aircraft, Kollsman Instrument Corp., both for breach ofimplied warranty of fitness. Motions brought by both Lockheed and Kollsmanto dismiss the complaint for failure to state facts sufficient to constitute causesof action pursuant to Rule 106(4) of the Rules of Civil Practice were granted.On affirmance by the Appellate Division, plaintiff appealed by permission to theCourt of Appeals. Held, (4-3)-reversed as to the manufacturer of the aircraft,Lockheed, affirmed as to the manufacturer of the altimeter, Kollsman. Theimplied warranty of fitness of the manufacturer which put the assembledaircraft into the market runs in favor of all intended users of the productdespite lack of privity of contract between such users and the manufacturer;no remedy lies against the manufacturer of the defective component part sincethere is adequate remedy against the manufacturer of the aircraft. Goldberg v.Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81(1963).In Winterbottom v. Wright,' the general rule that a manufacturer of adefective product is not liable to users not in privity of contract entered therealm of Anglo-American jurisprudence. From the outset, the privity doctrine,at best, proved to be a hard pill for courts to prescribe. An exception earlyarose as to articles of manufacture "inherently dangerous to life and health."2Judge Cardozo's landmark MacPherson decision3 in 1916, citing prior New Yorkcases which had created exceptions to the privity doctrine, 4 imposed liability innegligence, regardless of privity, upon a manufacturer in favor of the ultimateconsumer. MacPherson dealt the death blow to the vestige of the strict Winter-bottom influence in New York and rapidly became accepted in the vast majority1. 10 Mees. & W. 109, 152 Eng. Rep. 402 (Ex. 1842); see, e.g., National Say. Bankv. Ward, 100 U.S. 195 (1879).2. Thomas v. Winchester, 6 N.Y. 397, 57 Am. Dec. 455 (1852). See generally Prosser,Torts § 84 (2d ed. 1955).3. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916).4. E.g., Thomas v. Winchester, 6 N.Y. 397, 57 Am. Dec. 455 (1852) (mislabeledpoison bottle); Statler v. George A. Ray Mfg. Co., 195 N.Y. 478, 88 N.E. 1063 (1909)(exploding coffee urn: liability to bystanders).

Torts—Constructive Release of Co-Tortfeasors Fails

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Torts—Constructive Release of Co-Tortfeasors Fails

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