The appellant's reliance upon Curry v. Moser ( 89 A.D.2d 1) is misplaced, as that case was decided before the enactment of Vehicle and Traffic Law § 1229-c(8). Moreover, to the extent that Paulette Trent was allegedly negligent in failing to ensure that the children remained restrained in their car seats, her contributory negligence may not be imputed to the infant plaintiffs (see General Obligations Law § 3-111; Thurel v. Varghese, 207 A.D.2d 220; Kowalski v. Mohsenin, 38 A.D.2d 274, 277). The infant plaintiffs themselves, at ages four and two respectively, were non sui juris and incapable of being liable for negligence (Verni v. Johnson, 295 N.Y. 436; Birkett v. Knickerbocker Ice Co., 110 N.Y. 504; Romanchuk v. County of Westchester, 40 A.D.2d 877; Ehrlich v. Marra, 32 A.D.2d 638) .
Finally, Con Ed fails to suggest a meaningful set of criteria that would clearly distinguish those multiple claimant situations in which offensive use of collateral estoppel has been authorized (see, e.g., Kowalski v. Mohsenin, 38 A.D.2d 274; Randolph v Nurse, 49 A.D.2d 354) from those in which it should not be permitted. It may very well be that the Public Service Commission, which regulates the defendant utility as a gas and electric corporation organized under the Transportation Corporations Law, may authorize Con Ed to increase its rates in an attempt to pass on the costs of any judgments to its customers, rather than to charge its shareholders.
This being so, it is unnecessary to do more than note the additional and subsidiary consideration that in an action for conscious pain and suffering, and to a lesser degree in a wrongful death action, an executor or administrator represents interests additional to those of the distributees" (Molino v County of Putnam, 29 N.Y.2d 44, 49, supra; see, also, Deaton v Gay Trucking Co., 275 F. Supp. 750, 754-755; Illinois Cent. R.R. Co. v Slater, 139 Ill. 190). If the accident had resulted in merely injuries to both brother and sister, and were they adults, the fortuitous event that the sister's action had proceeded separately to a verdict against her would not per se destroy the right of the brother to a trial in his action, since due process demands that he is entitled to be heard (see Commissioners of State Ins. Fund v Low, 3 N.Y.2d 590, 595; Kowalski v Mohsenin, 38 A.D.2d 274, 277). As Justice WHITE said in Blonder-Tongue v University Foundation ( 402 U.S. 313, 329): "Some litigants — those who never appeared in a prior action — may not be collaterally estopped without litigating the issue.
The issue of plaintiff's contributory negligence was, of course, not present in the prior action. However, in the absence of any suggestion by State Farm that plaintiff was contributorily negligent or occupies a position distinguishable from that of Warner, it may be concluded that the initial requirement of the collateral estoppel test has been satisfied (see Randolph v Nurse, 49 A.D.2d 354; Kowalski v Mohsenin, 38 A.D.2d 274, 276-277; cf. Nesbitt v Nimmich, 34 A.D.2d 958, affd on opn below 30 N.Y.2d 622). With respect to the second factor necessary for the application of collateral estoppel, State Farm contends that it did not have a full and fair opportunity to contest the issue of its liability in that it was not allowed to introduce evidence of the building's faulty construction on the issue of East Hampton's contributory negligence. Although State Farm was barred from raising the issue during trial, it elected as a matter of strategy not to assert the issue on appeal (East Hampton Dewitt Corp. v State Farm Mut. Auto. Ins. Co., 490 F.2d 1234, 1237, supra).
Even if this Court were to find an issue of fact about whether Infant Plaintiff Brizard was wearing his seatbelt, they argue that it is well settled that the negligence of the parent in failing to ensure that a child is restrained in a seatbelt or car seat may not be imputed to the infant plaintiff. See Boyd v. Trent, 297 AD2d 301, 746 NYS2d 191 (2nd Dept., 2002); General Obligations Law Section 3-111; Thurel v. Varghese, 207 AD2d 220 (2nd Dept., 1995); Kowalski v. Mohsenin, 38 AD2d 274 (2nd Dept., 1972) [Infant Plaintiff Brizard 1, Exhs. A-N with Attorney Affirmation; Infant Plaintiff Wilkins 2, Exhs. A-B with Attorney Affirmation; Defendants Affirmation in Opposition to Brizard 3, Exh. A; Defendants Affirmation in Opposition to Wilkins 4, Exhs A-B; Infant Plaintiff Brizard's Reply Affirmation, Exhs. A-B].
It is apparent that the previous requirements as to mutuality of estoppel and identity of parties have been laid to rest. (Kowalski v Mohsenin, 38 A.D.2d 274.) A recent decision, Read v Sacco ( 49 A.D.2d 471, 473-474), held (in a civil case in which the doctrine was sought to be applied after conviction in a criminal trial) that "in every case the question of fairness — an inherent element of due process — in the application of the doctrine must be the crowning consideration."
In plain terms, it prevents parents' acts from barring any recovery for a child's injuries. ( Kowalski v. Mohsenin, 38 A.D.2d 274.) No such result will accrue from parental contributions towards the child's damages.
As these and other cases hold, it has been the rule that one who negligently injures a child cannot avoid liability to the infant by asserting the negligence of the parents in supervision as a bar. The negligence of the parent may not be imputed to the infant (General Obligations Law, § 3-111; Kowalski v. Mohsenin, 38 A.D.2d 274), although the failure of the parent to act reasonably in the care and supervision of the infant immediately prior to an accident may amount to contributory negligence barring a derivative recovery by the parent. ( Juszczak v. City of New York, 32 A.D.2d 824.)