Valdimer v. Mt. Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 210 N.Y.S.2d 520 (1961)

Simet, Donald P.

English

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Buffalo Law Review Volume 11 Number 1 Article 107 10-1-1961 Torts—Statute of Limitations on Negligence Claim Applicable 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—Statute of Limitations on Negligence Claim Applicable, 11 Buff. L. Rev. 268 (1961). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol11/iss1/107 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. BUFFALO LAW REVIEWbind an infant. It is not permissive in the sense of allowing tortfeasors and-others, against whom an infant may have a claim, to use it, or some alternativedevice to obtain a binding settlement with that infant.The lone dissenting judge of the Appellate Division expressed the opinionthat the decision in Delafield v. Barrett9 compelled them to hold the presentindemnity agreement enforceable against the parent. The Court of Appealsdiscussed the Delafield case and concluded that it was not controlling. That caseinvolved an indemnity agreement designed to protect a brokerage firm fromliability for investing funds belonging to the indemnitor's wards in securitiesthat were not on the officially approved list.92 As a result of general marketdeclines in 1929, the infants' funds were lost. Their mother, the indemnitor,brought suit on their behalf to recover their money from the brokerage firm.The broker counterclaimed on the indemnity agreement, and it was held to bevalid. This case is distinguishable because the conduct with which the defendantwas charged in the Delafield case was not tortious as in the instant case andbecause the indemnity agreement was not necessarily to the infants' detrimentbut could have benefited them by producing a larger return on their funds. Inthe Valdimer case, the indemnity agreement kept the infant from the custodyand protection of the courts which was patently to their disadvantage.93The holding of the Valdimer case, that indemnity agreements executed byparents in non-judicial infant tort claim settlements are invalid as against publicpolicy, will undoubtedly cast a heavier burden on the courts and insurancecompanies. The Supreme Court of Oregon, deciding a similar case, reasonedthat the additional costs to insurance carriers would be offset by adjustmentof premium rates and the burden on the court system was amply justified by thenature of the interests to be protected.94D. G.M.STATUTE OF LIMITATIONS ON NEGLIGENCE CLAIM APPLICABLEThe case of Lorberblatt v. Gerst95 presented a question of the applicableperiod of limitations for a personal injuries action. The plaintiff claimed thathis cause of action was either one created by statute or, in the alternative, one91. N.Y. Civ. Prac. Act § 1320:When application may be made: In any instance in which an infant may have aclaim for damages for personal injuries, injury to property, or breach of contract,an application for approval of a compromise or settlement of such claim may bemade to any court or a judge of any court in which an action could have beenbrought to recover the amount of the proposed settlement. No application shall bemade under this article if an action has been commenced on behalf of the infantto recover such damages.92. 270 N.Y. 43, 200 N.E. 67 (1936).93. N.Y. Dec. Est. Law § 111.Infants are the wards of the courts, and our rules of practice abound in provisionsof ancient origin designed to safeguard their legal rights.Greenburg v. New York Central & Hudson R.R. Co., 210 N.Y. 505, 509, 104 N.E. 931,934 (1914).94. Ohio Casualty Ins. Co. v. Mallison, 354 P.2d 800 (1960).95. 10 N.Y.2d 244, 219 N.Y.S.2d 40 (1961).268COURT OF APPEALS, 1960 TERMbased upon nuisance, for both of which a six-year limitation is set 96. Theplaintiff, a tenant in the defendant's apartment building, suffered a fall on anicy stairway, the condition being caused by ice and snow being blown upon thestairway of the building through an open door leading to the roof, which doorwas not the self-closing variety required by statute to protect tenants in case offire. The Appellate Division 97 had dismissed plaintiff's complaint, holding thatthe applicable limitation was the three-year period set for personal injuries dueto negligence.98The Court of Appeals first decided that the plaintiff's action was not onecreated by statute, since a common law duty was owed by the landlord to histenant to properly maintain the stairway free of any icy hazard, and, moreover,even if the statute were applicable it would amount merely to a definition of thedegree of care required in performing the existing duty, rather than the creationof a new duty. In reaching this conclusion the Court was careful to distinguishthe present action from an action based upon injuries suffered by a person whois prevented by the prohibited type of door from escaping a fire. No opinionwas expressed as to whether or not an action based upon injuries suffered in theevent of fire would be an action created by statute.Actually, the Court presented three arguments against the plaintiff'scontention that his action was one created by statute. First, the Court said thatthe gist of plaintiff's action was negligence, of the ordinary common law variety.Next, the Court said that the statute, which is directed at fire prevention, wasnot intended to guard against the risk of an icy condition being created on thestairway. Actions based upon violations of statute have traditionally requiredthat, "The harm which has occurred is of the type which it (the statute) wasintended to prevent."9 9 Finally, the Court reasoned that even if the particularharm which has occurred came within the purview of the statute, that harm wasstill only caused by negligent conduct, except that the negligence is tested by adifferent standard. As a practical matter it seems doubtful whether the plaintiffin the present case, granting for the purpose of the period of limitations problemthat the action was one created by statute, could have successfully taken hiscase to the jury on the asserted theory of a violation of statute.The Court also decided against the plaintiff's second contention, that hisaction was one based upon nuisance. The Court stated:If the cause of action consists in the creation by a defendant of adangerous condition in the nature of a nuisance, as by the dangerouslyfaulty design of a structure, the six-year statute applies, but the three-year limitation controls if the gist of the cause of action is negligencein failure to remove a dangerous condition which has been created byaccident or, at least, not by the act or design of the party to be96. N.Y. Civ. Prac. Act § 48 (2) (3).97. Lorberblatt v. Gerst, 11 A.D.2d 782, 204 N.Y.S.2d 982 (2d Dep't 1960).98. N.Y. Civ. Prac. Act § 49 (6).99. Prosser, Torts 154 (2d ed. 1955).BUFFALO LAW REVIEWcharged.... The dangerous condition claimed is not alleged to havebeen created by defendants but by the actions of the elements. Insuch instance the three-year Statute of Limitations applicable tonegligence applies (Civ. Prac. Act. § 49, subd. 6). 1In the important case of McFarlane v. City of Niagara Falls2, to which theCourt refers, Chief Judge Cardozo carefully reviewed the various meanings ofthe concept of nuisance, including nuisance arising from negligence:Other situations there are, however, where what was lawful in its originmay be turned into a nuisance by negligence in maintenance. Thecoal hole, built under a license, may involve a liability for nuisance,if there is negligence in covering it.... In these and like situations,the danger being a continuing one, is often characterized as a nuisance,though dependant upon negligence.3The Court approaches the present case by reasoning that the nuisance allegedby the plaintiff was not one which grew out of some positive act on the part ofthe defendant, which was later changed into a nuisance by defendant'snegligence. Here, the original act was not due to defendant's conduct, sincethe elements caused the accumulation of snow and ice on the stairway.Defendant's conduct then became operative, i.e., his failure to remove the snowand ice after sufficient time had passed for him to have had notice of thecondition. Perhaps, if the defendant had built his apartment house with an openentrance to the roof and the accumulation of ice and snow on the stairway keptrecurring, the defendant might have been found liable for creating a nuisance.Otherwise, the first wrongful conduct on the part of the defendant was hissimple failure to remove the snow and ice or, in other words, his negligence.Thus the Court found that the personal injuries suffered by the plaintiffwere due to defendant's negligence, if anything, and governed by the three-yearlimitation, because a clear cause of action based upon negligence was discernible,while only minor aspects of an action based upon statute or nuisance wereapparent from the facts of the case.D.P.S.LIBERAL CONSTRUCTION OF RULE ENACTED UNDER LABOR LAW PROTECTSCONSTRUCTION WoRKERsIn Conte v. Large Scale Development Corp., the Court of Appealsheld that under Rule 23-35.1 passed by the State Board of Standards andAppeals a general contractor and an owner of property are responsible forproviding protective guards and supports for an earthen ramp used in excavationwork by several subcontractors on the job.4While operating a tractor-type earth moving machine, the plaintiff, em-1. Lorberblatt v. Gerst, supra note 95 at 248, 219 N.Y.S.2d at 43,2. 247 N.Y. 340, 160 N.E. 391 (1928).3. Id. at 343-344, 160 N.E. at 392.4. 10 N.Y.2d 20, 217 N.Y.S.2d 25 (1961).270

Torts—Statute of Limitations on Negligence Claim Applicable

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Torts—Statute of Limitations on Negligence Claim Applicable

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