Levitt v. Peluso
1995 N.Y. Misc. LEXIS 680, 638 N.Y.S.2d 878, 168 Misc. 2d 239 (1995)
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Rule of Law:
For a vehicle owner to be held vicariously liable under New York Vehicle and Traffic Law § 388, the injury must arise out of the "use or operation" of the vehicle, meaning the vehicle's driving function or condition must be a proximate cause of the injury, not merely an incidental factor or the situs of an independent tortious act.
Facts:
- On May 20, 1994, the plaintiff, a pedestrian, was struck by an egg thrown from a moving automobile.
- As a result of being struck, the plaintiff was blinded in one eye.
- The automobile was owned by defendant Eugene Peluso.
- Eugene Peluso was not present in the vehicle at the time of the incident.
- Eugene Peluso had given his son, defendant Patrick Peluso, permission to operate the vehicle.
- Patrick Peluso was driving the car, and defendant Russell DiBenedetto was a passenger when the egg was thrown.
Procedural Posture:
- The plaintiff commenced a personal injury action against Eugene Peluso (owner), Patrick Peluso (driver), and Russell DiBenedetto (passenger) in a New York trial court.
- Defendants Patrick Peluso and Russell DiBenedetto entered voluntary pleas to assault in the third degree in a related criminal proceeding.
- The trial court previously granted the plaintiff's motion for summary judgment as to the liability of defendants Patrick Peluso and Russell DiBenedetto.
- The plaintiff then moved for summary judgment against defendant Eugene Peluso on the grounds of vicarious liability.
- Defendant Eugene Peluso cross-moved to dismiss the complaint against him.
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Issue:
Does an injury to a pedestrian caused by an egg thrown from a moving vehicle arise out of the 'use or operation' of that vehicle, thereby making the vehicle's owner vicariously liable under New York Vehicle and Traffic Law § 388?
Opinions:
Majority - Bernard F. McCaffrey, J.
No. An injury to a pedestrian caused by an egg thrown from a moving vehicle does not arise out of the 'use or operation' of the vehicle for the purposes of imposing vicarious liability on the owner. The court reasoned that Vehicle and Traffic Law § 388, being in derogation of common law, must be strictly construed. Applying the three-part test from Matter of Manhattan & Bronx Surface Tr. Operating Auth. (Gholson), the court found the injury did not arise from the 'inherent nature' of the automobile, which is transportation, not a 'launching pad' for projectiles. Furthermore, the vehicle itself was not the proximate cause of the injury; the independent, intentional act of throwing the egg was the proximate cause. The vehicle's role was merely incidental, contributing to the circumstances but not directly producing the harm.
Analysis:
This decision significantly clarifies the scope of 'use or operation' for vicarious liability under New York Vehicle and Traffic Law § 388. It establishes a restrictive proximate cause standard, distinguishing between injuries caused by the vehicle's function (e.g., a collision) and torts merely committed from within a vehicle. This precedent narrows the liability of absentee vehicle owners, protecting them from responsibility for the independent, intentional acts of permissive users that are unrelated to the act of driving. The ruling solidifies the principle that for owner liability to attach, the vehicle must be more than just the scene of the injury; its operation must be the direct cause.
