Poniatowski v. City of New York, 14 N.Y.2d 76, 198 N.E.2d 237, 248 N.Y.S.2d 849 (1964)

Swart, Michael

English

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Buffalo Law Review Volume 14 Number 2 Article 17 12-1-1964 Municipal Corporations—Fellow Servant Rule Not a Valid Defense to Liability of City for Negligence of Its Employee in Operating a Municipal Vehicle Michael Swart Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the State and Local Government Law Commons, and the Torts Commons Recommended Citation Michael Swart, Municipal Corporations—Fellow Servant Rule Not a Valid Defense to Liability of City for Negligence of Its Employee in Operating a Municipal Vehicle, 14 Buff. L. Rev. 328 (1964). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol14/iss2/17 This Recent Case 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. BUFFALO LAW REVIEWMUNICIPAL CORPORATIONSFELLOW SERVANT RULE NOT A VALID DEFENSE TO LIABILITY OF CITY FORNEGLIGENCE OF ITS EMPLOYEE IN OPERATING A MUNICIPAL VEHICLEPlaintiff, a police officer, sued the city of New York for injuries sustainedwhile riding as a "recorder" in a radio patrol car driven by a fellow officer.Plaintiff's injuries were caused by the negligence of the officer with whom hewas riding and, accordingly, the city contended that the fellow servant ruleapplied. The trial court found for the plaintiff, rejecting the city's contention.The Appellate Division reversed, holding that the fellow servant rule precludesrecovery by the plaintiff (two dissenting justices would not have applied thefellow servant rule). The Court of Appeals held, reversed. Sections 50-a and50-b of the General Municipal Law not only make the city liable for the negli-gent operation of vehicles by police and other municipal officers, but also in thiscase create a disparity in rank between the two policemen thereby excludingthe fellow servant rule as a defense in this situation. Poniatowski v. City ofNew York, 14 N.Y.2d 76, 198 N.E.2d 237, 248 N.Y.S.2d 849 (1964).In 1929 the state of New York waived sovereign immunity from liabilityand suits.' Because the subdivisions of the state derived their own immunitysolely from the latter, they, too, lost it and may be sued in the same manneras individuals and corporations.2 The effect of the waiver of immunity onmunicipal corporations depends upon the functional characteristics of the cityas related to the particular incident. 3 At common law cities have a dual charac-ter. They are, first, corporations performing strictly proprietary or municipalfunctions which benefit only the city itself and its citizens. Cities have alwaysbeen liable for injury resulting from negligence in performing these functions.41. N.Y. Ct. of Claims Act, § 8. "The state hereby waives its immunity from lia-bility and action and hereby assumes liability and consents to have the same determinedin accordance with the same rules of law as applied to actions in the supreme court againstindividuals or corporations, provided the claimant complies with the limitations of thisarticle. Nothing herein contained shall be construed to affect, alter or repeal any provisionof the workman's compensation law." See McCrossen v. State, 277 App. Div. 1160, 101N.Y.S.2d 591 (4th Dep't 1951) " . . . section 8 of the Court of Claims Act not onlywaived the State's immunity to suit and liability, but also made applicable the rule ofrespondeat superior to all officers, servants, agents and employees of the State .. ."2. McCrink v. City of New York, 296 N.Y. 99, 71 N.E.2d 419 (1947) (against citywithout separate statute); Bloom v. Jewish Bd. of Guardians, 286 N.Y. 349, 36 N.E.2d 617(1941) (against charitable agency of the state); Holmes v. Erie County, 266 App. Div. 220, 42N.Y.S.2d 243 (4th Dep't 1944), aff'd, 291 N.Y. 798, 53 N.E.2d 369: "The waiver of sover-eign immunity by section 8 of the Court of Claims Act included the civil divisions of theState and made them answerable for the wrongful acts of their officers and employees....Thus, the doctrine of respondeat superior . . . is now applicable with respect to municipalofficers and employees." Collins v. City of New York, 11 Misc. 2d 76, 77-78, 171 N.Y.S.2d710, 712 (Sup. Ct. 1958), aff'd, 8 A.D.2d 613, 185 N.Y.S.2d 740 (1st Dep't 1959), aff'd, 7N.Y.2d 822, 164 N.E.2d 719, 196 N.Y.S.2d 70 (1959); Shaw v. Village of Hempstead, 15Misc. 2d 72, 177 N.Y.S.2d 744 (Sup. Ct. 1958), modified, 11 A.D.2d 789, 214 N.Y.S.2d 945(2d Dep't 1960).3. See generally 62 CJ.S. MuniciPa Corporations §§ 110-116 (1949). 2 Antieau,Municipal Corporation Law § 11.07 (1963) (governmental versus proprietary); 4 Dillon,Municipal Corporations §§ 1655-1670 (5th ed. 1911).4. Volk v. City of New York, 284 N.Y. 279, 30 N.E.2d 596 (1941); Layer v. City328RECENT CASESSecond, cities perform governmental or public duties placed upon them by thestate which benefit the state as a whole rather than the city in particular.5Historically cities have been immune from liability for injuries resulting fromnegligence in the performance of the latter duties under the theory that thecities were acting as "agents" of the state.6 The present action would not lieat common law because both state and city were immune. Concurrently withthe waiver of immunity, the state enacted a statute which makes cities liablefor the negligence of a duly appointed person when driving a municipal vehiclealthough he was performing a public duty.7 At common law, and generallytoday, policemen are considered to be performing a governmental rather thana proprietary function, and as such are not servants of the city.8 This statutetherefore changes the governmental status of the policeman-driver pro tanto tothat of a municipal servant.9 Hence the city must answer for his negligencenot only under the common law rule of respondeat superior applicable to thecity by section 8 of the New York Court of Claims Act, but also under thisstatute. The statute is silent on the further question of whether or not adefense based on the fellow servant doctrine is available to a municipality. Thecity contended that this defense is available because the statute failed topreclude it expressly.of Buffalo, 274 N.Y. 135, 8 N.E.2d 307 (1937); Maxmilian v. Mayor of New York, 62N.Y. 160, 20 Am. Rep. 468 (1875); Bailey v. Mayor of New York, 3 Hill 531, 38 Am.Dec. 669 (N.Y. 1842).5. The distinction between proprietary and governmental functions rests on the factsof the particular case. Generally, however, if the city is under statutory mandate toperform a duty which is primarily for the benefit of the state, the city is said to be actingas an agent of the state and is performing a governmental function. The police power isusually a governmental function. Wilcox v. City of Rochester, 190 N.Y. 137, 82 N.E.2d1119 (1907). On the other hand if the city is performing a function primarily for itsown benefit which is not required by statutory mandate, courts generally hold it isacting in its proprietary capacity. Water supply is commonly held to be a proprietaryfunction. Layer v. City of Buffalo, 274 N.Y. 135, 8 N.E.2d 307 (1937). What appears tobe the first enunciation of the governmental versus proprietary test is found in Bailey v.Mayor of New York, 3 Hill 531, 539, 38 Am. Dec. 669 (1842) ("object or purpose" test).6. Bernadine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604 (1945); Evans v.Berry, 262 N.Y. 61, 186 N.E.2d 203 (1933); Murtha v. New York Homeopathic MedicalCollege, 228 N.Y. 183, 126 N.E.2d 722 (1920); Maxmillan v. Mayor of New York, 62N.Y. 160, 20 Am. Rep. 468 (1875); see also 4 Dillon, Municipal Corporations § 1656(5th ed. 1911) (relative to police).7. N.Y. Munic. Law § 50-a. The statute reads in part as follows: "Every city . . .shall be liable for the negligence of a person duly appointed . . . to operate a municipallyowned vehicle within the state in the discharge of a statutory duty imposed upon themunicipality, provided the appointee at the time of the accident or injury was acting inthe discharge of his duties and within the scope of his employment. Every such appointeeshall, for the purpose of this section, be deemed an employee of the municipality. .... "In 1936, what is now section 50-b, was added to the N.Y. Munic. Law. This sectionrenders the city liable and makes it "assume the liability for the negligence of, and . . .save harmless . . .' such persons as are described in section 50-a.8. Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604 (1945); Evans v.Berry, 262 N.Y. 61, 67-68, 186 N.E. 203, 204-05 (1933); Miller v. City of Albany, 158Misc. 720, 287 N.Y. Supp. 889 (Sup. Ct. 1935), aff'd, 247 App. Div. 848, 286 N.Y. Supp.326 (3d Dep't 1936); see generally 62 C.J.S. Munidpal Corporations § 568 (1949). But cf.Albany v. Standard Acc. Ins. Co., 7 N.Y.2d 422, 165 N.E.2d 869, 198 N.Y.S.2d 303 (1960)(police are servants, but only for the purpose of reading a contract of insurance).9. The crucial phrase of the statute as it affects the instant case is: "such appointeeshall, for the purpose of this section, be deemed an employee of the municipality. .... "BUFFALO LAW REVIEWThe fellow servant rule remains one of the three common law defensesagainst employer's liability.1 0 The rule insulates the employer from liabilityfor the injuries to one employee caused by the negligence of another employee.11Its original purposes, as enunciated in the three cases where it is first found,12were stated to be the promotion of safety among employees, and assistanceto growing industry by limiting the liabilities of employers. The rationale usedby the courts to justify these ends have emphasized certain elements of themaster-servant relationship: among them the assumptions that (1) the masterhas already satisfied his obligation of ordinary care by employing competentservants, (2) if the master's liability is not expressed or implied in the contract,it does not exist, (3) the servant has, by accepting the employment, acted ina manner akin to assumption of the risk, and (4) servants are in a betterposition than the master to know of the actions of their fellow servants, andcan therefore more easily insure their own safety. Whatever assumptions mayoriginally have underlain the rule, experience has shown that the inequities itproduces outweigh the benefits supposedly anticipated. Consequently the scopeof this defense was severely curtailed by legislators who either abrogated itcompletely or narrowly confined it.13 The courts however have almost invaria-bly, though frequently with ringing professions of distaste, upheld the fellowservant rule where it has not been eliminated by statute."4The majority seeks to answer the problem presented by holding section50-a of the General Municipal Law (making cities liable for the negligenceof a person driving a municipal vehicle) and section 50-b (making cities assumethe liability of such drivers) applicable. These two sections make the driverof a vehicle a "servant" but only for the purposes of the sections involved,while remaining silent about the passenger's status. The Court assumes thatthe common law status of policemen has remained unchanged, that is, they arestill deemed to be agents performing a governmental function. The majorityimplies that since the driver in this situation is an employee and the passenger10. The three defenses are: 1) assumption of risk, 2) contributory negligence,3) fellow servant rule. See Prosser, Torts § 68 (2d ed. 1955).11. See generally ibid. See 4 LaBatt, Master and Servant § 1393 (2d ed. 1913) fordetailed history and analysis of the fellow servant rule.12. Priestly v. Fowler, 3 M. & W. 1, 150 Eng. Rep. 1030 (Ex. 1837) (first enuncia-tion); Murray v. South Carolina R.R., 11 (1 McMul.) S.C. 385, 36 Am. Dec. 268 (1841)(the court said that because the company did not specifically ask the co-employee to breakthe other's leg it could not possibly be liable); Farwell v. Boston and Worcester R.R.Corp., 45 Mass. (4 Met.) 49, 38 Am. Dec. 339 (1842) (holding that because there wasa contract of employment that did not purport to hold the employer liable for injuries atthe hands of a co-employee, and because the employee is compensated by his wage forthe risk he assumes, the employer should not be liable for the injuries).13. Workman's Compensation statutes and the Federal Employer's Liability Actcompletely abrogate the rule. Arizona (Ariz. Const. art. 18, § 4), Colorado (Colo. Rev. Stat,Ann. 80-6-1 (1953)), and Wisconsin (Wisc. Stat. Ann. 331.37 (1958)) have eliminated Itby statute. Arkansas (Ark. Stat. Ann. 81-1201, 81-1209 (1947)) denies the defense tocorporations and coal mining operators, as do many other states which have severelylimited it.14. See Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 47-49, 194 So. 353, 361-63(1940) for history and arguments against the rule. Prosser, Torts §§ 68, 69 (2d ed. 1955);4 LaBatt, Master and Servant § 1397 (2d ed. 1913).330RECENT CASESan agent this disparity of status eliminates the validity of the city's defenseof the fellow servant rule.15 The dissent, however, raises the interesting problem(which the majority assumes to be solved) of the status of policemen: are theyemployees or agents? Judge Van Voorhis, quoting at length from one of hisearlier opinions, 16 claims that city police are servants because of the factthat cities have been held liable for injury to third persons due to the negligenceof city policemen. Therefore, being servants, they also are fellow servants andthe fellow servant rule should be available here as a defense.In the light of modern views concerning the employer-employee relation-ship, and especially in view of the developments in the field of workmen'scompensation, the majority holding is more responsive to current trends of ourthinking. It shifts the cost of injury from the injured employee to the employerwho can more adequately pass it on. Although the majority arrives at whatappears to be an equitable conclusion, it would seem that they could havereached it by more persuasive reasoning. First, a dearer showing that police-men are ordinarily agents performing a governmental function,17 especially inlight of the dissent's argument, would have made its position considerablystronger. This would have involved some discussion of why cities have beenheld liable for policemen's torts. The dissent states that it is because they arenow servants of the city. But it would appear from an examination of the casesand texts that the cities have been held liable not because of a change in thepolicemen's status from agent to servant, but as a consequence of the state'swaiver of immunity.' 8 Instead of following the judicial pattern of the lastseventy-five years by creating one more minute exception to the fellow servantrule,' 9 the court could have taken a more forceful approach by observing thatthe fellow servant rule is a relatively recent (1837) judicial creature and thatit is clearly within the power if not the responsibility of the judiciary to elimi-15. The majority reasons to the ultimate implication solely in the following threesentences. "There is no reason for not extending the relief thus afforded private personsto the police driver's fellow officers as well. Had the Legislature intended to exclude themfrom the statute's coverage, it could easily have so provided. It chose, instead, to denomi-nate as an employee of the municipality solely the person operating the vehicle 'in thedischarge of a statutory duty." Instant case at 80, 198 N.E.2d at 238, 248 N.Y.S.2d at 851.16. Schuster v. City of New York, 5 N.Y.2d 75, 81-82, 154 N.E.2d 534, 537-38, 180N.Y.S.2d 265 (1958).17. See authorities cited note 8 supra.18. 2 Antieau, Municipal Corporation Law § 12.05 (1963) (commenting on the effectof the New York Court of Claims Act); see also McCrink v. New York, 296 N.Y. 99,71 N.E.2d 419 (1947); Collins v. City of New York, 11 Misc. 2d 76, 77-78, 171 N.Y.S.2d710, 712 (Sup. Ct. 1958), aff'd, 8 A.D.2d 613, 185 N.Y.S.2d 740 (1st Dep't 1959), aff'd,7 N.Y.2d 822, 164 N.E.2d 719, 196 N.Y.S.2d 700 (1959); Miller v. City of Albany, 158Misc. 720, 287 N.Y. Supp. 889 (Sup. Ct. 1935), aff'd, 247 App. Div. 848, 286 N.Y. Supp.326 (3d Dep't 1936). See particularly, Koeppe v. City of Hudson, 276 App. Div. 443, 95N.Y.S.2d 700 (3d Dep't 1950) (and cases cited therein); Berean v. Town of Lloyd, 5 A.D.2d924, 172 N.Y.S.2d 301 (3d Dep't 1958); McCrossen v. State, 277 App. Div. 1160, 101N.Y.S.2d 591 (4th Dep't 1951).19. Courts in the past have limited the doctrine in many ways to avoid its applica-tion. Such limits are discussed in 4 LaBatt, Master and Servant §§ 1395-1405 (2d ed. 1913).They include such exceptions as vice-principalship, master's negligence, and separatedepartments.BUFFALO LAW REVIEWnate it.20 Finally, and more narrowly, it could have pointed to the novel schemeadopted by the legislation involved. It goes beyond the common law doctrineof respondeat superior by freeing the tort-feasor altogether while shifting lia-bility solely to the employer. It is hard to conceive that a legislature, in enactinglegislation designed to free policemen from tort liability, also intended that thefellow servant rule would be available as a defense against a member of thevery group whose financial welfare was to be advanced. These two grounds wouldhave provided the court with the opportunity to abolish this rule which bothmajority and dissent decry as being antiquated, wicked, callous to human rightsand inherently and grossly unjust.MICHAEL SWARTNEGLIGENCECOMPLAINT ALLEGING MOTHER'S MENTAL DISTRESS WITH PHYSICAL MANI-FESTATIONS CAUSED BY WiTNESSING DEATH OF HER SON BY ALLEGEDNEGLIGENCE OF DEFENDANT HELD TO STATE A CAUSE OF ACTION.While crossing a highway, plaintiff's son was struck and instantly killedby defendant, who was negligently driving her husband's automobile. Plaintiff,who had been standing by the side of the road watching her son cross, suedfor personal injuries, alleging severe mental distress with physical manifesta-tions, occasioned by witnessing his death. Defendant moved to dismiss thecomplaint for failure to state a cause of action. Held, motion denied. Apleading of negligent infliction of severe mental distress with physical mani-festations, by a mother who was present and saw her son killed by defendant'snegligence, states a cause of action, even though she herself was not placedin danger by defendant's act. Haight v. McEwen, 43 Misc. 2d 582, 251N.Y.S.2d 839 (Sup. Ct. 1964).Tort liability for the infliction of mental distress has passed throughxelatively well-defined stages of development.' It was first treated as anelement of "parasitic" damages-that is, invasion of the plaintiff's "interestin mental tranquillity ' 2 could be considered in the determination of damages,but not in the determination of liability.8 Subsequently a duty was imposedon those engaged in a "common calling" to refrain from unreasonably in-vading the right. Thus liability for the infliction of mental distress was ex-20 See Keeton, Creative Continuity in the Law of Torts, 75 Harv. L. Rev. 463 (1961).1. For an extensive treatment of this development see Amdursky, The Interest inMental Tranquility, 13 Buffalo L. Rev. 339 (1964), in which the intentional invasionof this interest is treated as antedating the imposition of liability to those engaged in a,common calling.2. Ibid.3. 1 Street, Foundations of Legal Liability 461 (1906).

Municipal Corporations—Fellow Servant Rule Not a Valid Defense to Liability of City for Negligence of Its Employee in Operating a Municipal Vehicle

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Municipal Corporations—Fellow Servant Rule Not a Valid Defense to Liability of City for Negligence of Its Employee in Operating a Municipal Vehicle

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