Cunningham v. McNair

Nunez, J. (dissenting).

Plaintiff, a New York resident, was injured on April 10, 1971 in Maryland. She was a passenger in an automobile owned and driven by New York residents, which collided with an automobile registered in Virginia and leased from appellant, Avis Rent-A-Car, Inc., in Maryland by its driver, a resident of Mississippi.

The case against Avis is based solely upon section 388 of the New York Vehicle and Traffic Law which imposes vicarious liability on the owner of a vehicle although operated by another with the owner’s consent. In Maryland, however, vicarious liability is not imposed upon the owner unless the negligence of the driver may be imputed to the owner who is present in the vehicle at the time of the accident or unless the driver is acting as the owner’s agent, servant or employee. (Taylor v Wesley Freeman, Inc., 186 Md. 474; Clark v Junkins, 245 Md. 104; Williams v Wheeler, 252 Md. 75.) Virginia has a similar vicarious nonliability rule. (See Lumbermens Mut. Cas. Co. v Indemnity Ins. Co. of North Amer., 186 Va. 204.)

The Court of Appeals has applied New York law to accidents occurring outside the State but only where the parties were both domiciled in New York, the automobile was registered in New York and New York compulsory insurance laws applied. (Babcock v Jackson, 12 NY2d 473; Tooker v Lopez, 24 NY2d 569.) In Neumeier v Kuehner (31 NY2d 121) the Court of Appeals reversed the Appellate Division which had applied New York law. At page 125 the court said: "Thus, Tooker v Lopez did no more than hold that, when the passenger and driver are residents of the same jurisdiction and the car is there registered and insured, its law, and not the law of the place of accident, controls and determines the standard of care which the host owes to his guest.”

Appellant’s automobile was registered in Virginia. It was leased to its customer in Maryland for use in Maryland. The accident occurred in Maryland. I perceive no basis whatever to saddle this owner with the vicarious liability imposed by New York law. Certainly it cannot be said that in registering the car in Virginia and leasing it in Maryland, appellant could foresee any possibility of being subject to New York law. "We see no compelling reason why that policy [that motorists shall be financially able to respond in damages for their negligent acts] should be implemented when the owner is not a New York resident, the automobile is not registered in New York * * * the accident did not occur in New York and the injured party is not a resident of New York.” (Rogers v U-Haul Co., 41 AD2d 834-835.) I readily concede that we no longer mechanically apply the common-law rule of lex loci delictus in tort cases. Our courts now have adopted a rule of choice of law in a conflict situation which looks to reason and justice in its selection of which law should apply. However, the ancient rule making the law of the situs of the accident controlling still applies with rare exceptions not here germane. (See Dym v Gordon, 16 NY2d 120; Kilberg v Northeast Airlines, 9 NY2d 34.) Furthermore, the majority’s determination is in direct conflict with the unanimous holding by this court this very day in Belisario v Manhattan Motor Rental (48 AD2d 477). Indeed, Belisario was a much stronger case for application of New York law, for Belisario, the plaintiff, lived in New York, the defendant was a New York corporation and the tractor involved in the accident was registered in New York. Yet, my colleagues reversed Special Term and applied New Jersey or situs law.

That appellant’s automobile collided with another automobile in which a New York resident (plaintiff) was a passenger was a purely fortuitous circumstance. It is a fundamental rule of law that generally, when we go into any given jurisdiction we submit to and are bound by their laws. Ctincededly, under the Maryland or Virginia law appellant is not liable to plaintiff. I would reverse and grant appellant’s motion to dismiss the complaint and cross complaint.

Markewich, J. P., and Yesawich, J., concur with Lupiano, J.; Capozzoli and Nunez, JJ., dissent in an opinion by Nunez, J.

Order, Supreme Court, New York County, entered on February 13, 1975, affirmed, without costs and without disbursements.