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EMMERT v. UNITED STATES

May 16, 1969

Mary EMMERT et al., Plaintiffs,
v.
UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Carl Howard EMMERT, Third-Party Defendant. UNITED STATES of America, Plaintiff, v. Carl Howard EMMERT, Defendant



The opinion of the court was delivered by: WADDY

 WADDY, District Judge.

 On April 16, 1965 an automobile owned and operated by Carl Howard Emmert, a Tennessee resident, collided in the District of Columbia with a motor vehicle owned by the United States and operated by a federal employee acting within the scope of his employment. Present as passengers in the Emmert vehicle were Mary Emmert, the operator's wife, and Sharon and Marilyn Emmert, the operator's minor daughters.

 Pursuant to the Federal Tort Claims Act, suit was brought against the United States by Mary Emmert, individually and as mother and next friend of Sharon and Marilyn Emmert to recover for injuries and damages sustained by the three female passengers allegedly caused by the negligence of the operator of the Government vehicle. The United States has filed a third party complaint against Carl H. Emmert, the owner and operator of the Emmert vehicle for contribution in the event the Government is found liable to the minor daughters, Sharon and Marilyn Emmert.

 The third party defendant has urged the doctrine of intrafamily immunity as a bar to the defendant United States' claim for contribution on the ground that the right of contribution as between joint tortfeasors in the District of Columbia is limited to tortfeasors who are jointly liable to the original plaintiff.

 Having found both the defendant United States and the third party defendant, Carl H. Emmert, to have been negligent, and also having found the negligence of the United States and Carl H. Emmert to have been concurring causes of the injuries sustained by Sharon and Marilyn Emmert, the Court is now confronted with the issue of whether the United States is entitled to contribution from the third party defendant, Carl H. Emmert.

 Under the Federal Tort Claims Act, the United States is made liable for damages for personal injuries or death caused by the negligent acts or omissions of its employees acting within the scope of their employment as if it were a private litigant, and "* * * in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Interpreting the above statutory language in Richards v. United States, 369 U.S. 1, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962), the Supreme Court has held that in applying the "law of the place", a federal court must apply the whole law of that jurisdiction including its choice of law rules.

 Application of choice of law rules is required not only in actions against the United States, but also as to claims for contribution asserted by the United States. Kantlehner v. United States, 279 F. Supp. 122 (E.D.N.Y.1967). Unlike as in Kantlehner, however, here it would appear no conflict exists between the law of Tennessee and the District of Columbia as to the substantive right of a party to seek contribution from an unintentional joint tortfeasor. *fn1" Thus choice of law principles are irrelevant on the threshold issue of the government's right to seek contribution. *fn2"

 The doctrine of intrafamily immunity is firmly entrenched in Tennessee. As noted by the Tennessee Supreme Court in October, 1968:

 
Tennessee courts have consistently followed the rule that an unemancipated minor child cannot sue its parent for personal injuries. *fn4"

 and further

 
The doctrine of parental immunity from actions based on ordinary negligence has long been the accepted rule in this State, and under the weight of authority a sound public policy forbids the maintenance of such an action. *fn5"

 In the District of Columbia, however, the viability of the intrafamily immunity doctrine is tenuous at best. In Dennis v. Walker, 284 F. Supp. 413 (D.C.D.C.1968), Judge Holtzoff noted that as of the date of his memorandum opinion, the courts of this jurisdiction had never squarely decided the applicability of the common law doctrine that an unemancipated child is precluded from suing his parents in tort. After an exhaustive review of leading authorities with emphasis upon the New York case of Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718 (1961) and the Maryland case of Mahnke v. ...


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