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March 3, 1976

HELENE T. FRANKLIN, as Administratrix of the Estate of YETTA FRANKLIN and as guardian of SHARON FRANKLIN, an infant over the age of 14 years, and HELENE T. FRANKLIN, individually, Plaintiffs,
NELSON FREIGHTWAYS, INC., Defendant and Third-Party Plaintiff, v. MARILYN C. SHIEBER, Third-Party Defendant

The opinion of the court was delivered by: PLATT


 Plaintiff moves to strike the affirmative defense of defendant Nelson Freightways, Inc. interposed in its amended answer alleging the applicability of the so-called Connecticut Family Car Doctrine to plaintiffs' claims herein and asserting that such Doctrine precludes recovery by the plaintiff.

 In her complaint plaintiff sues for $2,000,000 in damages for personal injuries suffered by her infant sister and herself (first claim) and for the same sum for the wrongful death of their mother (second claim).

 Jurisdiction, which is not disputed, is based upon diversity of citizenship (28 U.S.C. § 1332, et seq.).

 Plaintiff's claims arise out of an automobile-truck collision on December 30, 1972 on the Wilbur Cross Highway, a high speed limited access highway located in Connecticut.

 On that day plaintiff and her infant sister, Sharon, were seated in the rear of a car being driven by their father, Paul Franklin, who was seated alongside their mother, Yetta Franklin, the owner of the car. They were travelling from Brooklyn to Boston apparently to visit relatives. The car was registered and insured in New York.

 Near Union, Connecticut, in Tolland County, a tractor-trailer truck, being driven by David Forbes, a citizen of Massachusetts, had stopped in the right lane of the two east-bound traveling lanes at the time the collision occurred.

 The tractor portion of the truck was owned by Lewis & Son Leasing Co. of Fort Payne, Alabama, and was registered in Alabama. The trailer portion was registered in Maine and owned by Lewis & Son Leasing Co. of Massachusetts. Both the tractor and trailer were leased permanently by Lewis & Son Leasing Co. to the defendant, Nelson Freightways, Inc., the original lease period being for the term of 30 days and thereafter continued from month to month. The defendant, Nelson Freightways, Inc., is a Connecticut corporation which has a place of business and is doing business in New York.

 For some unknown reason defendant has filed no papers in opposition to plaintiff's motion.

 Plaintiff takes the position that the law of Connecticut must apply in determining the negligence of defendant's driver, David Forbes, since it is only proper that the law of Connecticut apply to the manner in which drivers using the highways of that State conduct themselves, citing Babcock v. Jackson, 12 N.Y.2d 473, at p. 483, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963). This clearly seems to be the law in New York (on which the Court must rely in this case, Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941)) as indicated in the following statement on the issue by the Court of Appeals (12 N.Y. 2d, at p. 483):

"Where the defendant's exercise of due care in the operation of his automobile is in issue, the jurisdiction in which the allegedly wrongful conduct occurred will usually have a predominant, if not exclusive, concern. In such a case, it is appropriate to look to the law of the place of the tort so as to give effect to that jurisdiction's interest in regulating conduct within its borders, and it would be almost unthinkable to seek the applicable rule in the law of some other place." (Emphasis added).

 The question remains, however, whether, as plaintiff contends, the New York law concerning vicarious liability applies to this accident or whether, as defendants have alleged, the so-called Connecticut Family Car Doctrine (Connecticut General Statute Annotated 52-182) and the owner-presumption doctrine (CGSA 52-183) should be applied.

 The most recent case on the subject in New York is Cunningham v. McNair, 48 A.D.2d 546, 370 N.Y.S.2d 577 (1st Dept. July 10, 1975), which we are informed is no longer being appealed to the Court of Appeals, having been settled.

 The facts in the Cunningham case are very close to those in the case at bar. In that case (as in this case) plaintiff, a New York resident, was a passenger in an automobile owned by a New York resident and driven by another New York resident on a trip which commenced in New York and was due to terminate in New York. While driving through Maryland the New York vehicle became involved in an accident with a vehicle owned by Avis Rent-a-Car Inc. which was registered in Virginia and leased from Avis in Maryland by a resident of Mississippi. After the commencement of the action Avis moved for summary judgment on the ground that neither Maryland nor Virginia law gave rise to a cause of action sounding in vicarious liability, the laws in such states being that the mere ownership of a motor vehicle does not render the owner liable for an accident which occurs while the vehicle is being ...

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