Watson v. State — 5 Misc. 2d 868

Majority

p. 868

Bertha Watson, Claimant, v. State of New York, Defendant. John Watson, Claimant, v. State of New York, Defendant. Mae Higginson, Claimant, v. State of New York, Defendant.

(Claim No. 32652.)

(Claim No. 32653.)

(Claim No. 33295.)

Court of Claims,

May 18, 1957.

p. 869

Michael Sweeney and Francis J. Keehan for John Watson and another, claimants.

Earl Matte for Mae Higginson, claimant.

Jacob K. Javits, Attorney-General (Joseph A. Cutro of counsel), for defendant.

Claimants were injured on March 29, 1954, in a collision with a truck of the New York National Guard driven by one Stanley Briggs, in Whitehall, New York. Briggs was operating the truck in line of his duty as a civilian employee, under the title of National Guard maintenance employee, and as such was a custodian of the military vehicles of the Whitehall unit. (It is immaterial that Briggs was also a member of the National Guard since he was not on duty as a guardsman at the time.)

The evidence leaves little doubt of Briggs’ negligence but there remains the question of the State’s liability for it.

Section 8-a of the Court of Claims Act waives the State’s immunity from liability with respect to the torts of members of the organized militia and employees in the division of military and naval affairs, with certain limitations. Immunity is expressly not waived “ in circumstances where under the laws of the United States liability has been or is hereafter assumed by the United States, to the extent of such assumption of liability under the laws of the United States ”.

The United States has assumed liability for the torts of civilian employees of Briggs’ category. (United States v. Holly, 192 F. 2d 221 ; Elmo v. United States, 197 F. 2d 230 ; United States v. Duncan, 197 F. 2d 233 ; Courtney v. United States, 230 F. 2d 112 .)

The claims are dismissed in an accompanying decision.