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VEHICLE AND TRAFFIC LAW 388 (1), WHICH IMPOSES VICARIOUS LIABILITY ON THE OWNER OF A VEHICLE, DOES NOT PERMIT A NEGLIGENT DRIVER TO SUE THE VEHICLE OWNER FOR THE DRIVER’S OWN NEGLIGENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Chambers, determined defendant vehicle-owner’s motion to dismiss the complaint should have been granted. The deceased driver’s estate sued the owner of the car under the vicarious liability statute, Vehicle and Traffic Law 388 (1). The Second Department held that the statute does not permit a negligent driver to recover against the vehicle-owner for the driver’s own negligence:

Vehicle and Traffic Law § 388(1) provides that “[e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner.” The predecessor of this provision—section 282-e of the Highway Law, which was enacted in 1924 …—was intended to alleviate the harshness of the common law rule whereby the owner of a vehicle who merely permitted another to drive it could not be held liable for the driver’s negligence unless the driver was the owner’s employee or agent and was using the vehicle as part of the owner’s business … . Thus, the purpose of the new legislation was to ensure that persons injured by a negligent driver had access to “a financially responsible insured person against whom to recover for injuries” … . In other words, while the driver’s own negligence remained grounded in common law, the new statute simply made owners vicariously liable for injuries caused by the driver’s negligence, so long as the driver was operating the vehicle with the owner’s express or implied permission … . The Legislature “did not otherwise change any of the rules of liability,” and “may not be presumed to make any innovation upon the common law further than is required by the mischief to be remedied” … .

In light of the history and purpose of Vehicle and Traffic Law § 388, we hold that the statute does not permit a negligent driver (or, in this case, the driver’s estate) to recover damages against the owner for injuries resulting from the driver’s own negligence … . Shepard v Power, 2020 NY Slip Op 06568, Second Dept 11-12-20

 

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