ARTHUR ARGENTINA AND MARY ARGENTINA, PLAINTIFFS-APPELLANTS, v. EMERY WORLD WIDE DELIVERY CORP., DEFENDANT-THIRD-PARTY-PLAINTIFF-APPELLEE, BEST CONSULTING CORP., DEFENDANT-APPELLEE, P. CHIMENTO CO., INC., THIRD-PARTY DEFENDANT-APPELLEE, EVER SHARPE DELIVERY SERVICE, INC., DEFENDANT.

No. 98-7183United States Court of Appeals, Second Circuit. August Term 1998Argued: October 15, 1998
Question Certified November 18, 1998 Certified Question Answered by New York Court of Appeals July 1, 1999 Decided: August 23, 1999

Resolution of an issue certified to the New York Court of Appeals regarding whether a plaintiff who was injured while unloading a truck can recover damages from the truck’s owner pursuant to Vehicle and Traffic Law § 388(1) when the truck itself was not the instrumentality that caused the injury.

Vacated and remanded.

PETER K. LEDWITH White, Quinlan, Staley Ledwith Garden City, N for Plaintiffs-Appellants

WILLIAM R. AHMUTY, III Ahmuty, Demers McManus Albertson, N for Defendant-Appellee Best Consulting Corp.

ANDREW A. ELMAN (William D. Bierman on the brief) Hannoch Weisman, P.C. Roseland, N.J. for Defendant-Third-Party Plaintiff-Appellee Emery World Wide Delivery Corp.

WILLIAM ROME Jaffe Asher New York, N Y for Third-Party-Defendant-Appellee P. Chimento Co., Inc.

Before: WALKER, Circuit Judge, MUKASEY,[*] District Judge, and RESTANI,[**] Judge.[***]

[*] The Honorable Michael B. Mukasey, of the United States District Court for the Southern District of New York, sitting by designation.
[**] The Honorable Jane A. Restani, of the United States Court of International Trade, sitting by designation.
[***] Pursuant to 28 U.S.C. § 46(b) and an order of the Chief Judge of this Court certifying a judicial emergency, this case was heard by a panel consisting of one judge of this Circuit and two judges sitting by designation.

PER CURIAM:

[1] This is an appeal from a judgment of the United States District Court for the Eastern District of New York (Joanna Seybert, District Judge), dismissing plaintiffs-appellants’ claims on the basis that the vehicle owned by defendant-appellee Emery World Wide Delivery Corp. was not the proximate cause of the injury suffered by plaintiff-appellant Arthur Argentina. The

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plaintiffs alleged that the defendants’ negligence in the ownership, use, control, and loading of a truck operated as part of Emery’s business was responsible for injuries suffered by Argentina on March 12, 1991, when he was struck by a steel plate while unloading cargo from the truck at Emery’s terminal at JFK International Airport.

[2] On appeal, we certified two questions to the New York Court of Appeals concerning New York’s Vehicle and Traffic Law § 388(1). See Argentina v. Emery World Wide Delivery Corp., 161 F.3d 108, 112 (2d Cir. 1998). That section provides, in pertinent part, that

Every 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.

[3] Plaintiffs’ theory of the case was that Ever Sharpe Delivery Services, Inc., the company employed by Emery to load and unload cargo onto Emery’s trucks, had negligently loaded the steel plate onto Emery’s truck, and that this negligence was the proximate cause of Argentina’s injuries. Plaintiffs argued that Emery should be held vicariously liable for Ever Sharpe’s negligence because Ever Sharpe was a permissive user of Emery’s truck.

[4] In dismissing plaintiffs’ claims, the district court acknowledged that the New York Court of Appeals had never directly answered the question of whether loading and unloading constitutes use or operation of a vehicle for purposes of § 388(1). Nevertheless, the district court assumed without deciding that loading and unloading constituted use or operation, but found that Emery still could not be held liable under § 388(1). Relying on the reasoning of the New York Court of Appeals i Walton v. Lumbermens Mutual Casualty Co., 88 N.Y.2d 211, 215-16 (1996), a case concerning New York’s no-fault insurance statute, N.Y. Ins. Law § 5103(a)(1), the district court held that, in order for the owner of a vehicle to be liable for injuries arising out of the use or operation of the vehicle, the vehicle itself must be the proximate cause of the injuries. Because the district court found that plaintiffs-appellants had “conceded” that the truck itself was not the proximate cause of Argentina’s injuries while claiming that the proximate cause was the improper loading of the truck, it held as a matter of law that Emery was not liable.

[5] On appeal, plaintiffs-appellants contended that the district court incorrectly incorporated the proximate cause rule fro Walton into a case involving a different statute. Defendants-appellees contended on appeal that the district court improperly assumed that loading and unloading constitute use or operation of a vehicle within the meaning of § 388(1).

[6] Finding that the case raised two legal issues that were open under New York law, we certified the following questions to the New York Court of Appeals:

(1) Whether, under New York’s Vehicle and Traffic Law Section 388(1), loading and unloading constitute “use or operation” of a vehicle.
(2) Whether, under New York’s Vehicle and Traffic Law Section 388(1), the vehicle must be the proximate cause of the injury before the vehicle’s owner may be held vicariously liable.

[7] The New York Court of Appeals has answered the first certified question in the affirmative and the second certified question in the negative. See Argentina v. Emery World Wide Delivery Corp., N.Y. Slip. Op. 06308, 1999 WL 444345 (July 1, 1999) (attached here as an Appendix). It held that loading and unloading constitute use or operation of a vehicle within the meaning of New York’s Vehicle and Traffic Law § 388(1), and that the vehicle need not be the proximate cause of an injury before the vehicle’s owner may be held vicariously liable. The New York Court of Appeals held that, in light of the different

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purposes served by New York’s Vehicle and Traffic Law § 388(1) and New York’s no-fault insurance statute, the district court erred in importing the proximate cause requirement under the no-fault insurance statute into Vehicle and Traffic Law § 388(1).

[8] In light of the decision of the New York Court of Appeals, we vacate the district court’s judgment and remand the case for further proceedings.

CONCLUSION
[9] The judgment of the district court is vacated and the case is remanded. Each party shall bear its own costs.

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