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RAMIREZ v. AMTRAK

July 28, 1983

VINCENT RAMIREZ, JR., an infant by his father and natural guardian, HARRY RAMIREZ, and HARRY RAMIREZ, individually, Plaintiffs, against NATIONAL RAILROAD PASSENGER CORPORATION, NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a AMTRAK, and PENNSYLVANIA TUNNEL AND TERMINAL COMPANY, Dependants.


The opinion of the court was delivered by: MOTLEY

MOTLEY, C.J.

This action was commenced in New York state court. In the original state complaint, plaintiffs alleged that the infant plaintiff, Vincent Ramirez, Jr., was injured when he came in contact with a power line in a rail yard owned by defendant National Railroad Passenger Corporation (NRPC). The rail yard, known as the "Sunnyside" yard, is located in the borough of Queens, in the city of New York. The complaint alleged that the infant plaintiff gained access to the Sunnyside yard through a fence that was owned by NRPC.

 NRPC removed the action to this court on diversity grounds, and commenced a third-party action against defendant Pennsylvania Tunnel and Terminal Co. (PT&TC), alleging that the infant plaintiff "actually entered the railroad yard through a fence and a piece of property" owned by PT&TC, which fence had been negligently maintained by PT&TC. *fn1" NRPC sought "contribution and/or indemnification" from PT&TC. *fn2" PT&TC denied the allegations of the third-party complaint. *fn3"

 Plaintiffs then filed an amended complaint, naming both NRPC and PT&TC as defendants, alleging, inter alia, that both defendants had a duty with respect to the fence through which the infant plaintiff gained access to the railroad yard. *fn4" NRPC's third-party action was discontinued without prejudice by stipulation. Shortly thereafter, PT&TC answered the amended complaint, and in its answer asserted a cross-claim against NRPC for indemnification, or, in the alternative, apportionment and contribution. In the cross-claim, PT&TC asserted that its negligence, if any, was "secondary and passive," while that of NRPC was "primary and active." *fn5"

 The action was settled as between both defendants and plaintiffs on or about March 31, 1983. Plaintiffs settled with NRPC for the sum of $35,000, and with PT&TC for the sum of $11,000.

 The case came before the court on cross-motions for summary judgment directed to PT&TC's cross-claim. By order dated June 30, 1983, the court granted NRPC's motion for summary judgment in its favor on the cross-claim, and denied PT&TC's cross-motion for summary judgment. The reasons for the court's decision are set forth below.

 DISCUSSION

 PT&TC conceded that, by virtue of its settlement of the claims against it, its action for contribution or apportionment was barred by N.Y.G.O.L. ยง 15-108(c). *fn6" PT&TC could still, however, pursue a common-law action for indemnity. See McDermott v. City of New York, 50 N.Y.2d 211, 220, 406 N.E.2d 460, 428 N.Y.S.2d 643 (1980). The parties did not dispute the applicability of New York law to the claims before the court.

 There was initially some confusion as to the location of the fence through which the infant plaintiff gained access to the Sunnyside yard. It appears that the Sunnyside yard adjoins property owned by PT&TC, and that there is no fence separating the Sunnyside yard from the property of PT&TC. In the original complaint, plaintiffs alleged that the infant plaintiff gained access to the Sunnyside yard through a fence owned by NRPC, located near 43rd Street and Barnett Place. *fn7" Through discovery, it was allegedly ascertained that the fence through which the infant plaintiff passed was located at 43rd Street and 37th Avenue, on property belonging to PT&TC, and that the fence belonged to PT&TC. *fn8" These facts were alleged in NRPC's third-party complaint. In plaintiffs' amended complaint, it was alleged that both defendants owned, operated and controlled the fence and railroad yard in question. The parties ultimately agreed, however, that PT&TC owned the fence through which the infant plaintiff gained access to the NRPC property upon which he was allegedly injured. *fn9"

 On the cross-claim, PT&TC's contention was that, notwithstanding its admitted ownership of the fence, NRPC should ultimately be held liable for any sums paid to plaintiffs by PT&TC, because, as between PT&TC and NRPC, NRPC had the duty to maintain the fence. This duty, according to PT&TC, had been "assumed" by NRPC and the "assumption" was evidenced by a course of conduct of NRPC.See affidavit of Harry W. Herbert in support of PT&TC's cross-motion for summary judgment at 3. PT&TC characterized this allegedly "assumed" duty as a "primary" duty to maintain and repair the fence. Id. at 4.

 Until recently, the law of New York State held that a tortfeasor who was sued by a plaintiff could not seek contribution from a joint tortfeasor who had not been named as a party defendant. In practical application, however, courts "abandon[ed] the rigorous common-law policy," developing an "'active-passive' negligence concept." Dole v. Dow, 30 N.Y.2d 143, 148, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972). The tortfeasor who was named as a defendant could seek to shift the entire burden of responsibility to the joint tortfeasor by means of an action over for indemnity. Id. The process "became a measure of degree of differential culpability.... The 'passive' negligent act was treated... as less a wrong than the 'active' negligent act." Id.

 In Dole v. Dow, the New York Court of Appeals criticized the use of the terms "active" and "passive" negligence in the context of indemnity, noting that, under that analytical construct, "there could be indemnity where a party 'was less culpable than the principal wrongdoer, although both [were] equally liable to the person injured'...." 30 N.Y.2d at 150. The court undertook to "re-examine" the doctrine of indemnity, and held that, where each party is in part responsible for the negligence for which one has been held liable in damages, the "prime defendant" may recover for that part of the negligence attributable to the other. Id. at 148-49. In other words, the court recognized a "[r]ight to apportionment... rest[ing] on relative responsibility." Id. at 153. The effect of the Dole decision was to narrow the availability of the common-law remedy of indemnity to situations in which the tortfeasor seeking such relief is liable only vicariously, or by operation of law. See Tokio Marine & Fire Insurance Co., Ltd. v. McDonnell Douglas Corp., 465 F. Supp. 790, 796 (S.D.N.Y. 1978), aff'd, 617 F.2d 936 (2d Cir. 1980).

 Since the decision in Dole v. Dow, the courts of New York State have employed the terms "primary" and "secondary" in examining claims for indemnity. Thus, one who is in the "first instance" liable to a plaintiff for breach of a nondelegable duty is "secondarily" liable, because the duty "could not be delegated as against persons injured by the breach of the duty." Kelly v. Diesel Construction, 35 N.Y.2d 1, 7, 315 N.E.2d 751, 358 N.Y.S.2d 685 (1974) (emphasis added). If the party who must pay in the first instance has, however, in fact delegated the duty to another, he is only "vicariously liable" to the injured plaintiff, and may seek indemnity from the actual tortfeasor, who is "primarily" liable.35 N.Y.2d at 7. See also Rogers v. Dorchester Associates, 32 N.Y.2d 553, 564-65, 300 N.E.2d 403, 347 N.Y.S.2d 22 (1973).

 In the instant case, PT&TC admitted that there was no contract providing for indemnity between it and NRPC. *fn10" PT&TC argued, however, that it was only vicariously, or "secondarily," liable to plaintiffs and that it was therefore entitled to indemnification by NRPC. PT&TC's argument implicitly acknowledged that PT&TC, as owner of the fence, had a nondelegable duty to maintain the fence, i.e., that there was a legal basis for PT&TC's liability to plaintiffs. *fn11" As the court has already noted, it is clear that one who in the first instance has a nondelegable duty and is therefore absolutely liable for breach of that duty may delegate the responsibility for performance of the duty to another, and recover under a theory of implied indemnity from the ...


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