Updating NY traffic law and restoring liability protection

The legislative intent of the statute is to urge car owners to exercising warning and superior judgment when allowing for many others to use their vehicle and not to disguise behind self-serving claims that their car was used without the need of their permission. (Credit history: PhotoSpirit/Adobe Stock)


New York Auto and Targeted visitors Regulation §388 (hereinafter VTL §388) holds car homeowners vicariously liable for any mishaps when their motor vehicle is operated by a different human being. This legal responsibility is rooted in the presumption that automobile house owners consent to the procedure of their vehicle by others, and this presumption may well only be triumph over by a demonstrating of considerable evidence to the opposite. An owner’s consent may perhaps be specific or implied. Distinguishing among the two is dependent on the specifics of every case.

The legislative intent of the statute is to urge auto house owners to training warning and excellent judgment when making it possible for other individuals to use their car and not to cover at the rear of self-serving claims that their vehicle was made use of devoid of their authorization. The interpretation of the statute by the courts has set a superior bar for car proprietors to rebut the sturdy presumption of permissive use. New conclusions demonstrate that homeowners of cars could have a lot more safety from the statute than beforehand considered.

Allstate Ins. Co. v. Shim, 185 A.D.3d 919 (2d Dep’t 2020) addresses the difficulty of whether or not an owner who surrenders her automobile to a mechanic for a restore might be liable for an accident. Ashley Johnson, a Pennsylvania resident, dropped her motor vehicle and keys off at Murph’s Garage in Coatesville, Pa., so that her auto could be repaired. Johnson testified that she did not give Murph or anybody at the garage authorization to drive the vehicle, with the exception that anyone at the garage may “have to check generate [the car] close to the block, but which is it.” Id. at 920. Soon after Johnson dropped off the automobile, Sheroon Shabazz, a relatives member of one particular of Johnson’s buddies, attained out to Johnson about obtaining her motor vehicle. Unbeknownst to Johnson, Murph permitted Shabazz to consider the auto. The car or truck ultimately arrived into possession of defendant-driver Frierson, who was running the motor vehicle at the time of the incident in New York.

Consent to function another’s motor vehicle is ordinarily presumed however, there are definitely boundaries. The 2nd Division ruled in favor of Johnson and held that the presumption of permissive use was rebutted by substantial evidence. Johnson was explicit in her dialogue with Murph that no one particular at the shop or elsewhere was permitted to push the vehicle, aside from a “test push … close to the block.” The point that the car or truck ended up in New York is evidence of Johnson’s lack of consent. A journey to New York is not a test travel all around the block. Johnson was shielded from liability.

This ruling followed the holding in Croke v. Osburn, 32 Misc.3d 1233(A) (N.Y. Sup. Ct. 2011). In Croke, the defendant-motor vehicle proprietor left his keys with a repair store to have a flat tire set. The defendant said that he assumed the keys needed to be left with the repair service shop to unlock the car, but at no time during the transaction did he give the maintenance shop any authority, convey or implied, to work the auto, even for a exam push. The co-defendant mend shop contended that leaving the keys with the repair service store certified as implied consent to function the vehicle. The courtroom held that this argument was merely speculative, and the proprietor was not held liable for plaintiff’s injuries.

In American State Insurance coverage Co. v. Umude, 176 A.D.3d 542 (1st Dep’t 2019), the defendant owned a Cadillac Escalade and applied it as a limousine for seek the services of. He parked the vehicle at his mother’s home in planning for a excursion he was making to the airport the future working day. Although he slept, his brother took the keys to the car or truck from defendant’s jacket pocket. Defendant later on been given a get in touch with from a law enforcement officer that his brother was wounded in an automobile incident. Defendant searched for his keys to push to the hospital, only to find that both of those his keys and his auto had been gone.

Upon arrival at the medical center, defendant produced a statement to a law enforcement officer that he disavowed his brother’s use of his motor vehicle. Defendant filed a law enforcement report, formally stating that he did not give any authorization to his brother to operate his motor vehicle. Though the court emphasized that “disavowals by the proprietor … without having additional, should not immediately end result in [a ruling in favor of] the operator,” id., the disavowal, coupled with the police report, had been sufficient to negate the presumption of permissive use. Defendant was not identified liable to the hurt party in the incident.

Even in scenarios the place a auto operator gives a human being express consent to work his motor vehicle, legal responsibility is not mechanically assumed by the proprietor. In Shepard v. Electric power, 190 A.D.3d 63 (2d Dep’t 2020), the plaintiff’s decedent was functioning defendant’s car or truck with defendant’s authorization, but tragically lost manage of the vehicle, struck a guardrail, and was killed. Plaintiff, equally separately and as the administrator of his decedent’s estate, commenced an motion in opposition to the defendant-operator looking for to recover damages stemming from the incident induced by the decedent-driver’s possess negligence. The Second Department said that the statutory purpose of VTL §388 was to ease the harshness of the popular legislation rule that auto homeowners could only be held liable for the negligent driving of their workers or brokers. By growing the scope of legal responsibility for vehicle owners, VTL §388 enables folks hurt by negligent motorists to have access to a financially liable insured man or woman from whom to recuperate for accidents. The enlargement of legal responsibility is not without the need of its limits. In prior scenarios, plaintiffs have been 3rd get-togethers, not the operator of the vehicle owned by a defendant. The court docket listed here identified that permitting negligent drivers to get well damages for their individual carelessness just since the auto they had been functioning was owned by anyone else would established a hazardous precedent that would outcome in unfair judgments.

Heins v. Vanbourgondien, 180 A.D.3d 1019 (2d Dep’t 2020) limitations the skill of plaintiffs to recover from auto owners for their have carelessness when consent to run the auto was implied. Below, defendant-operator entrusted her automobile to her daughter who then permitted plaintiff to work the auto. Plaintiff swerved the motor vehicle into a median, triggering the car to roll above right before coming to a halt. Plaintiff pled several results in of the incident and introduced action against various events, like the proprietor of the motor vehicle, who plaintiff claimed implicitly consented to plaintiff’s operation of the car. Even if this implicit consent existed, the Next Division declined to “expand the scope” of VTL §388 to incorporate car operators. The courtroom underscored §388’s intent: to allow “innocent 3rd get-togethers,” not auto operators, to get better from entrepreneurs. Id. at 1024.

Piano Exchange v. Weber, 168 A.D.3d 1017 (2d Dep’t 2019) retains that careless habits by a auto operator does not necessarily make liability. Defendants parked their Range Rover in their driveway and routinely still left the keys to the car or truck in the glove compartment of one more auto also parked in their driveway. Two persons uncovered the keys to the Vary Rover in the glove compartment of the other automobile, stole the Selection Rover, and crashed it into another auto. Plaintiff sued defendants for carelessness based mostly on their leaving the keys in the glove compartment of the other car or truck. Applying VTL §388, plaintiff sought to use the presumption of permissive use to hold defendants liable. The Next Section observed the defendants demonstrated a prima facie entitlement to judgment as a subject of law simply because their testimony showed that the Variety Rover was parked in their non-public driveway with the keys still left in another car, also in their driveway. Though their steps may have been irresponsible, their steps did not constitute consent for the two individuals to steal and use their motor vehicle, and under VTL §388, the steps of the proprietors were being not the basis of liability.

Courts are reluctant to defend automobile entrepreneurs from vicarious liability for the steps of intoxicated motorists. In Williams v. J. Luke Constr. Co., 172 A.D.3d 1509 (3d Dep’t 2019), the courtroom identified that an employee’s breach of a company plan though functioning a vehicle will not automatically safeguard an employer from liability. An worker-defendant was driving to a career web page when he struck plaintiff’s automobile head-on, injuring plaintiff. His employer claimed he breached a business coverage simply because defendant drove the organization car whilst intoxicated. The employer argued that the unwritten corporation plan was an “unambiguous and unequivocal settlement restricting authorization” which “negates an owner’s liability.” Id. at 1512. The courtroom turned down this argument, stating that a policy limiting intoxicated driving is extra carefully aligned with managing how the vehicle is operated fairly than a restriction on who may possibly operate the vehicle. The employee experienced his employer’s permission to run the auto irrespective of his intoxication, making defendant-employer liable to plaintiff. In these situations of gross negligence by drivers, vehicle owners will be held accountable.

Courts have interpreted what constitutes a vehicle below VTL §388. Wright v. O’Leary, 172 A.D.3d 1495 (3d Dep’t 2019) holds that VTL §388 applies only to “motor vehicles” pushed on “public highways.” A motor vehicle is any vehicle “propelled by any electric power other than muscular electrical power,” excluding farm tools and “all-terrain type” motor vehicles, and a community freeway is “[a]ny freeway, highway, road, avenue, alley, community position, general public driveway or any other community way.” Id. at 1496. In Wright, defendant’s teenage son was operating defendant’s John Deere Gator Utility Vehicle (hereinafter automobile) on defendant’s private house with plaintiff’s teenage son in the passenger seat when the car overturned, injuring plaintiff’s son. Plaintiff’s father sued defendant and tried to keep him liable under VTL §388 and other statutes. Defendant was located liable for negligently entrusting his son to run the auto but was not located liable less than VTL §388 mainly because the auto did not fall in just the statutory definition of a automobile and the incident did not happen on a public freeway.


VTL §388 retains car or truck entrepreneurs accountable and assures that victims of accidents involving a auto owned by a person but pushed by a non-proprietor could search for economical redress for their injuries. Latest applications of VTL §388 by New York courts have shielded house owners from liability where their autos are clearly used without their consent.

Andrea M. Alonso and Kevin G. Faley are partners in the company of Morris Duffy Alonso Faley & Pitcoff. Bradley Austin, a paralegal, assisted in the planning of this article.


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