author: Kaye, J.

text:
    Theodore C. D’Amico, Appellant, v Kenneth D. Christie, Defendant, and Schlegel Corp. et al., Respondents. Sharyn Henry et al., as Executrices of Arthur B. Stockdale et al., Deceased, Appellants, v Jessie Vann, Jr., Defendant, and Monroe Tube Company, Inc., Respondent.
    Argued November 17,1987;
    decided December 17, 1987

      POINTS OF COUNSEL

      Thomas G. Smith and Richard E. Alexander for appellant
    in the first above-entitled action. I. The Schlegel Social and Athletic Association is liable under General Obligations Law § 11-101 for the injuries caused by Kenneth Christie. (Edgar v Kajet, 84 Misc 2d 100, 55 AD2d 597; Gabrielle v Craft, 75 AD2d 939; Kohler v Wray, 114 Misc 2d 856; Bartkowiak v St. Adalbert’s R. C. Church Socy., 40 AD2d 306; Matter of New York State Liq. Auth. v Fuffy’s Pancake House, 65 AD2d 556; Matter of New York State Liq. Auth. v Sutton Social Club, 93 Misc 2d 1024; Montgomery v Orr, 130 Misc 2d 807; Dynarski v U-Crest Fire Dist., 112 Misc 2d 344.) II. The Schlegel Social and Athletic Association is liable for the injuries caused by Kenneth Christie under common-law negligence. (Comeau v Lucas, 90 AD2d 674; Huyler v Rose, 88 AD2d 755, 57 NY2d 777; Paul v Hogan, 56 AD2d 723; Greer v Ferrizz, 110 AD2d 815, 118 AD2d 536; Horan v Cold Spring Constr. Co., 109 Misc 2d 1034; Bennett v Geblein, 71 AD2d 96; Allen v County of Westchester, 109 AD2d 475, 66 NY2d 915; O’Leary v American Airlines, 100 AD2d 959; Thomas v Leary, 15 AD2d 438; Woods v Lancet, 303 NY 349; Buckley v City of New York, 56 NY2d 300.) III. Christie’s employer, defendant Schlegel Corp., is legally responsible for the tortious conduct of its employees’ association. (Horan v Cold Spring Constr. Co., 109 Misc 2d 1034; Bushey & Sons v United States, 398 F2d 167; Makoske v Lombardy, 47 AD2d 284, 39 NY2d 773; Riviello v Waldron, 47 NY2d 297; O’Boyle v Avis Rent-A-Car Sys., 78 AD2d 431; McBride v County of Schenectady, 110 AD2d 1000.)

      Thomas C. Burke for Berla Galliger, respondent in the first above-entitled action.
    I. Appellant did not state a cognizable claim in common-law negligence against Mrs. Galliger. (Gabrielle v Craft, 75 AD2d 939; Edgar v Kajet, 84 Misc 2d 100, 55 AD2d 597, 41 NY2d 802; Bertholf v O’Reilly, 74 NY 509; Mead v Stratton, 87 NY 493; Reid v Terwilliger, 116 NY 530; Conigliaro v Franco, 122 AD2d 15; O’Leary v American Airlines, 100 AD2d 959; Montgomery v Orr, 130 Misc 2d 807; Delamater v Kimmerle, 104 AD2d 242; Comeau v Lucas, 90 AD2d 674; Wright v Sunset Recreation, 91 AD2d 701.) II. No Dram Shop claim was stated or proved against Mrs. Galliger. (Mitchell v The Shoals, Inc., 26 AD2d 78, 19 NY2d 338; Moyer v Lo Jim Cafe, 19 AD2d 523, 14 NY2d 792; Smith v Guli, 106 AD2d 120; Conigliaro v Franco, 122 AD2d 15; Edgar v Kajet, 84 Misc 2d 100, 55 AD2d 597, 41 NY2d 802; Gabrielli v Craft, 75 AD2d 939; Cowin v Huntington Hosp., 130 Misc 2d 267; Kohler v Wray, 114 Misc 2d 856; Zona v Oatka Rest. & Lounge, 68 NY2d 824.) III. No prima facie case was proved under any theory presently existing or urged upon this court by appellant. IV. Appellant improperly seeks to have this court abandon established law and amend existing statutes. (Edgar v Kajet, 84 Misc 2d 100, 55 AD2d 597, 41 NY2d 802; Conigliaro v Franco, 122 AD2d 15; Gabrielle v Craft, 75 AD2d 939; Magee v Landers, 122 Misc 2d 736; Delamater v Kimmerle, 104 AD2d 242; Moyer v Lo Jim Cafe, 19 AD2d 523, 14 NY2d 792; Wright v Sunset Recreation, 91 AD2d 701; Thornton v Roosevelt Hosp., 47 NY2d 780; Matter of Steinhardt v Johns-Manville Corp., 78 AD2d 577, 54 NY2d 1008.)

      Edward J. Burns and Thomas S. D’Antonio for Schlegel Corporation, respondent in the first above-entitled action.
    I. No negligence claim was established against Schlegel. (Conigliaro v Franco, 122 AD2d 15; O’Leary v American Airlines, 100 AD2d 959; Mead v Stratton, 87 NY 493; Reid v Terwilliger, 116 NY 530; Bertholf v O’Reilly, 74 NY 509; Allen v County of Westchester, 109 AD2d 475, 66 NY2d 915; Gabrielle v Craft, 75 AD2d 939; Delamater v Kimmerle, 104 AD2d 242; Wright v

      Sunset Recreation, 91 AD2d 701; Schirmer v Yost, 60 AD2d 789.) II. No cognizable Dram Shop claim was pleaded or proven. (Conigliaro v Franco, 122 AD2d 15; Greer v Ferrizz, 118 AD2d 536; Gabrielle v Craft, 75 AD2d 939; Edgar v Kajet, 84 Misc 2d 100, 55 AD2d 597, 41 NY2d 802; Cowin v Huntington Hosp., 130 Misc 2d 267; Kohler v Wray, 114 Misc 2d 856.) III. Under any theory urged, appellant failed to establish a basis for liability against Schlegel. (Edgar v Kajet, 84 Misc 2d 100, 55 AD2d 597, 41 NY2d 802; Valicenti v Valenze, 68 NY2d 826; Liff v Schildkrout, 49 NY2d 622.) IV. Schlegel is not vicariously responsible for actions of Christie or the Association. (Forman v Davidson, 74 AD2d 505; D’Angelo v D’Angelo, 109 AD2d 773; Johnson v Daily News, 34 NY2d 33; Edgar v Kajet, 84 Misc 2d 100, 55 AD2d 597, 41 NY2d 802; Cowin v Huntington Hosp., 130 Misc 2d 267; Zeglen v Minkiewicz, 12 NY2d 497; Magee v Landers, 122 Mise 2d 736.)

      Robert N. Isseks for appellants in the second above-entitled action.
    An employer has a duty, under the doctrine of respondeat superior and common-law negligence, to refrain from directing a manifestly intoxicated and incapacitated employee to drive a motor vehicle from the employer’s premises onto the public highways. (Riviello v Waldron, 47 NY2d 297; O’Boyle v Avis Rent-A-Car Sys., 78 AD2d 431; Frazier v State of New York, 100 AD2d 270; Solomon v City of New York, 66 NY2d 1026; Benjamin v City of New York, 64 NY2d 44; Palsgraf v Long Is. R. R. Co., 248 NY 339; Pulka v Edelman, 40 NY2d 781.)

      Martin J. Semel for respondent in the second above-entitled action.
    Monroe Tube Company in terminating the employment of an employee who became intoxicated and directing that he leave the jobsite breached no legally cognizable duty to the persons involved in a motor vehicle accident with the former employee. The third cause of action was properly dismissed. (Pilgrim v Fortune Drilling Co., 653 F2d 982; Purdy v Public Adm’r, 127 AD2d 285; Palsgraf v Long Is. R. R. Co., 248 NY 339; Becker v Schwartz, 46 NY2d 401; Kimbar v Estes, 1 NY2d 399; Pulka v Edelman, 40 NY2d 781, 41 NY2d 901; Johnson v Daily News, 34 NY2d 33; Edgar v Kajet, 55 AD2d 597, 41 NY2d 802; Waters v New York City Hous. Auth., 69 NY2d 225.)
   OPINION OF THE COURT

Kaye, J.

These appeals present the common issue whether employers or an employees’ association should be liable for injuries caused by the off-premises drunk driving of adult, off-duty employees who have consumed intoxicants. We conclude that neither the Dram Shop Act nor the common law encompasses such liability.

D’Amico v Christie

After leaving work at Schlegel Corporation on Friday, June 13, 1980, defendant Kenneth Christie attended a picnic at Powder Mill Park near Rochester, some distance from Schlegel’s plant. The event was organized by the Schlegel Social and Athletic Association (the Association), a voluntary society formed by Schlegel employees. The sole purpose of the Association was to organize two annual members-only social functions, a Christmas party and a summer picnic. Association members themselves set up the picnic, cooked, and cleaned up the site. Food and beverages were purchased out of a fund made up of members’ monthly dues of $1 and the proceeds of $5 ticket sales. At the picnic, cans of beer were kept on ice, freely available, in plastic-lined trash cans. Christie spent about four hours ct the picnic and may have consumed as many as 6 or 8 12-ounce cans of beer. He left at approximately 10:30 p.m. and drove to Michael’s Tavern, where he had arranged to meet friends. He continued drinking beer there, and left some time between 1:00 and 2:00 a.m. Shortly after 2:30 that morning, as he was driving home, Christie entered Interstate 490 on an exit ramp and drove west in the eastbound lane until he collided head-on with a car driven by plaintiff Theodore D’Amico, injuring him seriously. Christie later pleaded guilty to a charge of driving while intoxicated, a misdemeanor, in the Town of Brighton Justice Court.

D’Amico then brought this action against Christie, Michael’s Tavern, Berla Galliger (as president of the Association) and Schlegel, claiming that Christie was liable in common-law negligence, that Michael’s Tavern was liable under New York’s Dram Shop Act (General Obligations Law § 11-101), that the Association was legally responsible for his injuries because it sold or served the alcohol that caused Christie’s intoxication, allowing him to become so drunk that he could not safely drive an automobile, and that Schlegel was responsible for the acts of its employees. At trial, a toxicologist testifying as plaintiff’s expert opined that, based on blood samples taken later during the morning of June 14, 1980, Christie had become legally intoxicated before leaving the picnic.

The trial court dismissed the complaint against Schlegel at the close of plaintiffs case and dismissed the complaint against the Association at the close of all the evidence. The jury found Christie liable in negligence and Michael’s Tavern liable for a violation of the Dram Shop Act, held D’Amico free of contributory negligence, and awarded damages against those defendants. The Appellate Division reversed as to Michael’s Tavern on grounds not relevant here and upheld the dismissal of the complaints against the Association and Schlegel, noting that the Association had not been engaged in the commercial sale of alcohol. We agree that D’Amico’s claims against the Association and Schlegel were properly dismissed.

Henry v Vann

Plaintiffs, executrices of the estates of Arthur and Evelyn Stockdale, allege that the Stockdales died as a result of injuries they suffered in an automobile accident on December 10, 1984 in Monroe, New York, when their car collided head-on with one negligently driven by defendant Jessie Vann, Jr. Vann, who was intoxicated, had been employed by defendant Monroe Tube Co. as a machine operator until shortly before the accident. Vann worked the second shift at Monroe’s plant, starting at 2:30 p.m. He took a break at about 6:30 or 7:00 p.m. After his break, at about 8:30, Vann’s foreman smelled alcohol on his breath and noticed his eyes "did not look right.” The foreman told Vann he was too intoxicated to perform his duties safely, fired him, and told him to leave the premises. The foreman saw Vann walk out of the plant. Vann got into his car and on his way home, at a point about half a mile from the Monroe plant, he drove his car into the opposite lane of oncoming traffic and collided with the Stockdales’ car.

Plaintiffs sued Vann and Monroe, alleging that Monroe was vicariously liable for Vann’s acts. Plaintiffs also contended that Monroe’s independent act of directing or allowing Vann to drive while too intoxicated to work was negligent and a direct cause of the foreseeable accident that resulted in the Stockdales’ deaths. Supreme Court denied Monroe’s motion for summary judgment on the cause of action alleging its independent negligence. The Appellate Division reversed, concluding that Monroe "violated no legally cognizable duty owing to the decedents.” (124 AD2d 783, 784.) We agree.

Dram Shop Act Claim

We first consider D’Amico’s claim against the Association under the Dram Shop Act (General Obligations Law § 11-101).

At common law, one who provided intoxicating liquor was not liable for injuries caused by the drinker, who was held solely responsible. Excessive alcohol consumption was deemed to be the proximate cause of injuries produced by the inebriate; selling or furnishing alcohol to an adult who elected to become intoxicated was not viewed as the root of the resulting harm (see, e.g., Reid v Terwilliger, 116 NY 530, 533; Mead v Stratton, 87 NY 493, 496; Bertholf v O'Reilly, 74 NY 509, 524; Allen v County of Westchester, 109 AD2d 475, appeal dismissed 66 NY2d 915; Edgar v Kajet, 84 Misc 2d 100, affd 55 AD2d 597, Iv dismissed 41 NY2d 802; Note, Special Project: Social Host Liability for the Negligent Acts of Intoxicated Guests, 70 Cornell L Rev 1058, 1063 [1985]).

By the Dram Shop Act, the Legislature created an exception to the common-law rule (see, Note, Liability Under the New York Dram Shop Act, 8 Syracuse L Rev 252 [Spring 1957]). The statute provides: "Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawfully selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.” As an exception to the common law, the statute must of course be construed narrowly (see, e.g., Valicenti v Váleme, 68 NY2d 826, 829).

While not literally restricted to actual "dram shops” or commercial taverns (see, e.g., Bartkowiak v St. Adalbert’s R. C. Church Socy., 40 AD2d 306), the Dram Shop Act has consistently been read by lower courts as applicable only to sales of alcohol for profit — that is, commercial sales (see, Edgar v Kajet, 84 Misc 2d 100, affd 55 AD2d 597, supra; Conigliaro v Franco, 122 AD2d 15, 16; Greer v Ferrizz, 118 AD2d 536; Wright v Sunset Recreation, 91 AD2d 701; Gabrielle v Craft, 75 AD2d 939; Kohler v Wray, 114 Misc 2d 856). Plaintiff urges this court, first, to reject that reading of the statute and, second, even if a commercial sale is necessary, to hold that the facts here satisfy the statutory requirement. We cannot accept either argument.

We find no basis for departing from the consistent interpretation of lower courts that the Dram Shop Act requires a commercial sale of alcohol. That the statute is properly limited to sellers of intoxicating liquors is made plain even by its title: "Compensation for injury caused by the illegal sale of intoxicating liquor.” The body of the statute also speaks of "unlawfully selling” alcohol. When the Legislature intended to reach the broader category of alcohol providers — as it did in 1983 in adding General Obligations Law § 11-100, applicable to minors — it said exactly that. General Obligations Law § 11-100, in contrast to the Dram Shop Act, imposes liability for injuries caused by intoxicated individuals who have not reached the legal drinking age upon persons "unlawfully furnishing” alcoholic beverages to them. Nor does anything in the long history of the Dram Shop Act support the broader reading plaintiff now urges upon us. The act appears to have uniformly required an alcohol sale as the predicate for liability (see, L 1963, ch 516, § 11-101).

In the end, plaintiff’s plea is that the statute should include all alcohol providers because of the indisputable threat to society posed by drunk drivers. We are, however, constrained in applying a statute by the unequivocal intent expressed by the Legislature in enacting it; if there is to be a change in what the Legislature has clearly written it should come from the Legislature.

Based on the affirmed findings supported by the record, we agree with the conclusion reached by both courts below that the Association was not engaged in the commercial sale of alcohol as contemplated by the Dram Shop Act. The Association made no direct sales of alcohol, and had no recognizable expectation of pecuniary gain from its social affairs. The availability of beer to coemployees who had chipped in to buy their own food and beverages for the picnic cannot be considered a commercial sale of alcohol within the Dram Shop Act.

There having been no commercial sale of alcohol, no claim is stated against the Association under the Dram Shop Act, and this claim against Schlegel obviously fails as well.

D’Amico’s Common-Law Negligence Claims

Plaintiff next urges that liability should be imposed on the Association and Schlegel under the common law.

As noted, historically it was the drinking of the alcohol, not the furnishing of it, that was regarded as the proximate cause of alcohol-induced injury. There was therefore no basis for imposing liability on persons who merely furnished alcohol, for injuries caused by an intoxicated person (see, Edgar v Kajet, 84 Misc 2d 100, 101, affd 55 AD2d 597, supra; Note, Kelly v Gwinnell and Social Host Liability for the Provision of Alcohol to an Adult Guest: The Party’s Over, 49 Alb L Rev 711, 712 [1985]). Plaintiff argues that this historical view of the respective responsibilities of the provider and drinker of alcohol is antiquated, that lower courts have recognized that control and supervision of inebriates is required even in certain noncommercial settings, and that this court should emulate the example of New Jersey (Kelly v Gwinnell, 96 NJ 538, 476 A2d 1219) by imposing liability upon social hosts for highway injuries caused by intoxicated guests.

We find no basis in these arguments on the facts of this case for imposing liability on the Association. The Association owed no legal duty to D’Amico in connection with Christie’s acts (see, Waters v New York City Hous. Auth., 69 NY2d 225).

Landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property (Basso v Miller, 40 NY2d 233, 241). In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control (see, De Ryss v New York Cent. R. R. Co., 275 NY 85). Applying this rationale, lower courts have recognized that a landowner may have responsibility for injuries caused by an intoxicated guest (see, e.g., Joly v Northway Motor Car Corp., 132 AD2d 790; Comeau v Lucas, 90 AD2d 674; Huyler v Rose, 88 AD2d 755, appeal dismissed 57 NY2d 777). Significantly, however, these decisions have uniformly acknowledged that liability may be imposed only for injuries that occurred on defendant’s property, or in an area under defendant’s control, where defendant had the opportunity to supervise the intoxicated guest (see, e.g., Delamater v Kimmerle, 104 AD2d 242, 244; Comeau v Lucas, supra; Wright v Sunset Recreation, 91 AD2d 701, supra; Huyler v Rose, supra; Schirmer v Yost, 60 AD2d 789; Paul v Hogan, 56 AD2d 723; Vale v Yawarski, 78 Misc 2d 522 [Hancock, Jr., J.]). That duty emanated not from the provision of alcohol but from the obligation of a landowner to keep its premises free of known dangerous conditions, which may include intoxicated guests.

But that situation is materially different from the one at hand. First, unlike the cited examples, the Association was not engaged in serving alcoholic beverages: the picnic was a cooperative venture. Association members — all coemployees who gathered voluntarily for the social benefit of a summer picnic — in effect had purchased their own food and alcoholic beverages, and set up the party and served themselves; coemployees neither dispensed nor monitored the consumption of alcohol. The Association was not in the position of a bartender or even a host dispensing alcohol, who may deny the request of a patron or guest for another drink. Second, the injuries complained of did not take place on the picnic premises, or Association property; the accident occurred on a public highway several miles distant. The Association lacked the opportunity to supervise and control that defendants in the cited cases had. Thus, it is clear that the common law of this State relating to landowners who provide alcohol to their guests does not support recovery by plaintiff against the Association.

While recognizing the moral desirability that drinking be controlled and supervised, we cannot create a new legal duty that would require the Association to respond in damages, as an insurer, for plaintiff’s injuries. Such a result would require this court to go even beyond the standard adopted by the New Jersey Supreme Court in Kelly v Gwinnell (supra). In Kelly, defendant host during a social visit to his home served his guest the equivalent of 13 drinks within an hour or two, continued serving him liquor after his guest was visibly intoxicated — actions that were "relatively easily corrected” (96 NJ, at 549-550, 476 A2d, at 1225, supra) — accompanied the guest to his automobile, saw him drive off, and was himself sufficiently concerned about the guest’s capacity that he called to see if the guest had arrived home safely. There is simply no parallel here.

Significant also is the fact that New Jersey had no Dram Shop Act. The court in Kelly emphasized this as a basis for its decision: "the very existence of a Dram Shop Act constitutes a substantial argument against expansion of the legislatively-mandated liability. Very simply, when the Legislature has spoken so specifically on the subject and has chosen to make only licensees liable, arguably the Legislature did not intend to impose the same liability on hosts.” (96 NJ 538, 554, 476 A2d 1219, 1227, supra.)

In this State the Legislature has spoken. We have a statute prohibiting the unlawful sale of alcohol generally, and a statute prohibiting the unlawful provision of alcohol to minors. The Legislature adopted the statute relating to minors in 1983, and amended it in 1985 — at neither time making similar amendments to the Dram Shop Act. The Legislature, thus far, has chosen not to impose liability generally on alcohol providers. While common-law doctrine relating to landowners’ liability for dangerous conditions on their land may also protect third persons injured by intoxicated guests, that doctrine is wholly inapposite on the facts of this case. What plaintiff is in effect asking of this court is not an expansion of any relevant common-law doctrine but an amendment of General Obligations Law § 11-101, to parallel General Obligations Law § 11-100. This we cannot do.

Again, the conclusion that no liability lies against the Association compels the further conclusion that the claims were properly dismissed against Schlegel.

Henry’s Common-Law Negligence Claim

Unlike D’Amico, in this case there is no claim that the defendant employer provided alcohol to its employee or in any way contributed to his intoxicated condition. The case does not involve any alleged violation of either the Dram Shop Act or the landowners’ responsibility to keep their premises free of known dangerous conditions. Rather, the issue here is whether an employer who fires an inebriated employee and orders him off the work site owes a duty to users of the public highways who may later be injured by him. In a sense, what plaintiffs seek here is the recognition of a third tier of responsibility — neither that of the person who himself consumed the alcohol and operated the vehicle, nor that of the person who provided him with the alcohol, but that of an employer, for failing to control or supervise him after terminating his employment.

Like D’Amico, in order for plaintiffs to prevail on this claim of common-law negligence, there must first be a legal duty owed by defendant to them. Foreseeability of harm is alone not enough (Waters v New York City Hous. Auth., 69 NY2d 225, supra; Pulka v Edelman, 40 NY2d 781, 785, rearg denied 41 NY2d 901). No prior cases of this State have recognized the duty plaintiffs now espouse.

Relying principally on Otis Eng’g Corp v Clark (668 SW2d 307 [Tex]; see generally, Morrison and Woods, An Examination of the Duty Concept: Has It Evolved in Otis Engineer ing v Clark?, 36 Baylor L Rev 375 [1984]), plaintiffs urge that defendant’s legal obligation to restrain or prohibit Vann from driving off the work site may be found, first, in the employer-employee relationship and, second, in the fact that the employer assumed a duty of control when it directed Vann to take certain action. In our view, neither rationale supports recovery here.

A defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control (see, Pulka v Edelman, 40 NY2d 781, 783, supra; Harper and Kime, The Duty to Control the Conduct of Another, 43 Yale LJ 886 [1934]). Certain relationships, however, may give rise to this duty. Under the doctrine of respondeat superior, for example, an employer may be liable for acts of its employees in the course and scope of employment (Riviello v Waldron, 47 NY2d 297; Johnson v Daily News, 34 NY2d 33); an employee ordinarily is not acting in the course and scope of employment when traveling to and from work, so as to impose liability on the employer for negligent driving during these trips (see, Lundberg v State of New York, 25 NY2d 467, 471, rearg denied 26 NY2d 883). Here, there can be no question that Vann was acting outside the employment relationship at the time of the accident.

Alternatively, plaintiffs urge that the employment relationship may additionally give rise to a duty on the part of an employer to control the conduct of its employee even outside the scope of employment, pointing to the Restatement (Second) of Torts § 317. That duty, however, as formulated in the Restatement, is limited to torts committed by employees on the employer’s premises or with the employer’s chattels, and similarly would be unavailing to plaintiffs because the accident occurred off the employer’s premises and did not involve the employer’s property. Thus, plaintiffs have shown no basis in the mere existence of the employer-employee relationship for the legal duty they would have us adopt.

Going beyond the employer-employee relationship itself, plaintiffs assert that the employer assumed a duty of supervision or control when it directed Vann to leave the premises. As set forth in the Restatement (Second) of Torts, "[o]ne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” (Restatement [Second] of Torts § 319.) Plaintiffs urge that the employer here took charge of Vann, that it knew or should have known that Vann was likely to cause bodily harm to others if not controlled, and that it failed to exercise reasonable care to prevent him from doing such harm (see, Otis Eng’g Corp. v Clark, 668 SW2d 307, 311 [Tex], supra). The Restatement illustrations themselves — relating to hospitals caring for contagious or violent patients — suggest a relationship more closely akin to custody, as that section has in fact been applied by lower courts (see, e.g., Cowin v Huntington Hosp., 130 Misc 2d 267; Rausch v McVeigh, 105 Misc 2d 163, 166).

Whatever else may be required, however, at the minimum such a duty requires an existing relationship between the defendant and the third person over whom "charge” is asserted (Prosser and Keeton, Torts § 56, at 383-385 [5th ed]). But the very basis for plaintiffs’ complaint is that defendant failed and neglected to take charge of Vann, when it simply fired him. In this respect the rule plaintiffs seek is broader than Otis (supra), where the employer sent its apparently intoxicated employee — still an employee subject to the employer’s control — home for the afternoon. Here, defendant did not take charge of Vann; it discharged Vann.

By the same token, such a duty of necessity must be limited to conduct that defendant may reasonably control (see, Pulka v Edelman, 40 NY2d 781, 783-784, supra). Even in Otis (supra), which as yet has no parallel in New York law, the employer virtually placed its employee behind the wheel when it accompanied him to the parking lot and sought his assurance that he could make it home. Plaintiffs have not shown any conduct of Vann’s that, in the circumstances, defendant here might reasonably have controlled.

Thus, plaintiffs have failed to demonstrate any legal duty in the existing law of this State that defendant can be said to have breached.

Nor, on these facts, should the common law be enlarged to permit plaintiffs’ recovery. It is plain that to do so would have broad ramifications, a factor we appropriately take into account in fixing the orbit of duty that will necessarily control other cases as well as this one (see, Waters v New York City Hous. Auth., 69 NY2d 225, 230, supra; see also, Morrison and Woods, An Examination of the Duty Concept: Has It Evolved in Otis Engineering v Clark?, 36 Baylor L Rev 375, 419-425). Where is the line to be drawn on the legal responsibility of an employer terminating an employee in these circumstances? What is the responsibility to third persons; what is the responsibility to such an employee who then goes out onto crime-ridden streets? What action would be required of employers to satisfy this legal duty; what action do they have a legal right to take? Such vexing questions, for which no reasonable solutions are suggested or indeed discernible, persuade us that it would be unwise, on the facts presented here, to enlarge an employer’s existing common-law duties as plaintiffs suggest.

Accordingly, in D’Amico v Christie the Appellate Division order should be affirmed, with costs, and in Henry v Vann the judgment appealed from and Appellate Division order brought up for review should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

In D’Amico v Christie: Order affirmed, with costs.

In Henry v Vann: Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    Jancyn Manufacturing Corp., Respondent, v County of Suffolk, Appellant.
    Argued November 11, 1987;
    decided December 21, 1987

      POINTS OF COUNSEL

      Martin Bradley Ashare, County Attorney (Frederick Eisenhud of counsel), for appellant.
    I. When a local law is not expressly inconsistent with a general law, a finding of inconsistency may not be made without first determining whether the Legislature intended that the general law preempt the field. (New York State Club Assn. v City of New York, 69 NY2d 211; People v Cook, 34 NY2d 100; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; Matter of United States Power Squadrons v State Human Rights Appeal Bd., 59 NY2d 401; F. T. B. Realty Corp. v Goodman, 300 NY 140; People v Judiz, 38 NY2d 529; Council for Owner Occupied Hous. v Koch, 119 Misc 2d 241, 61 NY2d 942; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; Matter of Kress & Co. v Department of Health, 283 NY 55.) II. Absent an express statement of preemptive intent by the State Legislature, no inference should be drawn from the pervasiveness of regulatory schemes found in the Environmental Conservation Law that the Legislature intended to preclude consistent local legislation. (People v Judiz, 38 NY2d 529; People v New York Trap Rock Corp., 57 NY2d 371; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; Matter of Ames v Smoot, 98 AD2d 216; Long Is. Pest Control Assn. v Town of Huntington, 72 Misc 2d 1031; Matter of Northeast Mines v State of New York Dept. of Envtl. Conservation, 113 AD2d 62; Matter of

      Envirogas, Inc. v Town of Kiantone, 112 Misc 2d 432; Sunshine Chem. Corp. v County of Suffolk, 104 AD2d 869; Oriental Blvd. Co. v Heller, 27 NY2d 212; Mobil Oil Corp. v Town of Huntington, 85 Misc 2d 800.)

      A. Thomas Levin and Joseph Jaspan for respondent.
    I. The Suffolk County Legislature lacked power and/or authority to enact or enforce the subject local law; Local Law No. 12 of 1980 is preempted by, and inconsistent with, State legislation and is invalid. (New York State Club Assn. v City of New York, 69 NY2d 211; Matter of Osborn v Cohen, 272 NY 55; Ainslee v Lounsbery, 275 App Div 729, 299 NY 797; Manes v Goldin, 400 F Supp 23, 423 US 1068; Hotel Dorset Co. v Trust for Cultural Resources, 63 AD2d 157, 46 NY2d 358; Floyd v New York State Urban Dev. Corp., 41 AD2d 395, 33 NY2d 1; City of Amsterdam v Helsby, 37 NY2d 19; Adler v Deegan, 251 NY 467; Consolidated Edison Co. v Town of Red Hook, 90 AD2d 803, 60 NY2d 99.) II. The affirmative defenses fail, as a matter of law, to state a defense. (Village of Herkimer v Axelrod, 58 NY2d 1069; Town of Black Brook v State of New York, 41 NY2d 486; Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283; Uniformed Firefighters Assn. v City of New York, 50 NY2d 85; Robertson v Zimmermann, 268 NY 52; Hotel Dorset Trust Co. v Trust for Cultural Resources, 63 AD2d 157, 46 NY2d 358; People v Wilkerson, 73 Misc 2d 895; People v Miceli, 73 Misc 2d 133; City of New York v Town of Colchester, 66 Misc 2d 83.) III. Special Term erred in dismissing the complaint. Declaratory relief was properly granted by the court below. (Bonady Apts. v Columbia Banking Fed. Sav. & Loan Assn., 99 AD2d 645; Russell v Town of Pittsford, 94 AD2d 410; Arrow Louver & Damper Corp. v Newsday, Inc., 86 AD2d 513; Adelphi Lamp & Shades v 41 Madison Ave. Co., 84 AD2d 501; Fillman v Axel, 63 AD2d 876; Downey v Merchants Mut. Ins. Co., 30 AD2d 171, 23 NY2d 989.)
   OPINION OF THE COURT

Simons, J.

Plaintiff, the manufacturer of a cesspool additive known as "Drainz,” a product which contains chlorinated hydrocarbons, commenced this action seeking a declaration that Suffolk County Local Law No. 12 of 1980 was invalid because it was superseded by ECL article 39. Local Law No. 12 prohibits the sale of cesspool additives, defined to include any organic chemical or compound used for cleaning or unclogging sewer lines or sewage disposal systems, without prior approval by the Suffolk County Commissioner of the Department of Health Services (Local Law No. 12 §§ 2, 3). In order to secure the county Commissioner’s approval, the person seeking to offer a particular additive for sale must submit scientific data demonstrating to the Commissioner’s satisfaction that the product "will not adversely affect the groundwaters” (§ 4). The local law became effective August 13, 1980.

Six weeks later, on September 28, 1980, article 39 of the ECL, entitled "Sewage System Cleaners and Additives Used in Restricted Geographical Areas,” became law (L 1980, ch 732, § 5). The State law prohibits the sale and use of certain sewage system cleaning additives in Suffolk and Nassau Counties (ECL 39-0103, 39-0105) and empowers the State Commissioner of Environmental Conservation to promulgate regulations requiring manufacturers of these products to submit information regarding their chemical components and the nature and extent of research concerning their effects, if any, on groundwater (ECL 39-0107 [2]). The Commissioner is also empowered to prohibit or restrict the sale and use of a product containing any ingredient other than one of the specified restricted chemical materials, where the Commissioner finds, after investigation and hearing, that such ingredient "is likely to have a dangerous, deleterious or injurious effect upon the public health or environment” in the restricted geographical areas (ECL 39-0107 [3]). Both the State law and the previously enacted local law seek to prevent contamination of the water resources of Long Island by regulating the flow of cesspool additives into its water supply — i.e., the Magothy acquifer, recognized by Local Law No. 12 to be a sole source acquifer (Local Law No. 12 § 1; ECL 39-0101; see also, L 1980, ch 732, § 1 [legislative findings]). The issue presented is whether Local Law No. 12 is invalid either because it is in conflict with or has been preempted by ECL article 39. For the reasons that follow, we hold that it is not invalid.

I

In 1980, plaintiff sought the approval of the State Commissioner of Environmental Conservation for the sale of its products, "Drainz” and "Super Drainz,” in Suffolk and Nassau Counties. By letter dated October 23, 1980, the Department of Environmental Conservation replied in relevant part as follows:

"Article 39 places the basic responsibility for determining whether sale of a sewage system cleaner or additive is or is not prohibited in Nassau or Suffolk County, on the manufacturer. Based on information you have supplied to this Department, and Nassau County Department of Health analysis of one can of your product, it would appear that your new formulations of Drainz and Super Drainz are not prohibited from sale under Article 39. However, these products have not yet been approved for sale in Suffolk County in accordance with Local Law 12-1980.

"You have indicated that the new formulations will be identified by a 'sunburst’ symbol on each can. Therefore, barring future Department findings to the contrary, the new formulations of Drainz and Super Drainz may be sold in Nassau County (and in Suffolk County, if and only if approved for sale by that County in the future), if the containers are identified by the 'sunburst’ symbol”. (Emphasis applied.)

In June 1981, seeking to enforce Local Law No. 12, Suffolk County prohibited the sale of both "Drainz” and "Super Drainz.” Plaintiff commenced an action in Federal District Court alleging that Local Law No. 12 deprived it of due process of law and that it conflicts with and was superseded by article 39 of the ECL and was therefore invalid. District court abstained from deciding plaintiff’s motion for summary judgment pending resolution in State court of the "preemption” issue raised in the Federal complaint (583 F Supp 1364). Plaintiff then commenced the present action and after cross motions for summary judgment were made, Supreme Court denied plaintiff’s motion, granted defendant’s cross motion and dismissed the complaint, thereby sustaining the validity of Local Law No. 12 (126 Mise 2d 463). The court determined that the Legislature, in enacting article 39, had not clearly manifested an intent to occupy the entire field of sewage system cleaners and additives. It deemed significant that: (i) ECL 39-0105 prohibits only the use of certain amounts of restricted chemical material; the legislation does not touch on other areas of potential restriction as does the local law in question; (ii) the Legislature has not adopted a comprehensive and detailed regulatory scheme with respect to sewage system cleaners and additives; and (iii) exclusive jurisdiction with respect to cesspool cleaners and additives has not been vested in the Commissioner under article 39, as evidenced, in part, by the conclusion of the Department of Environmental Conservation, the agency primarily responsible for the administration of the article, that there was no preemption. Local Law No. 12, the court concluded, had not been preempted by ECL article 39 (126 Misc 2d, at 467-468).

A divided Appellate Division reversed, granted plaintiffs motion for summary judgment, and remitted the matter to Supreme Court for entry of an appropriate judgment declaring Local Law No. 12 to be invalid. Stating that it did not reach the question of whether the local law had been preempted by article 39, the majority determined that although Local Law No. 12 "does not expressly conflict with the provisions of ECL article 39 * * * the local law is [nevertheless] inconsistent with its State counterpart and is, therefore, invalid.” (125 AD2d 641, 644.) The majority advanced two grounds in support of its determination: (1) "by permitting further limitations upon the use of sewage system cleaning products, [Local Law No. 12], in effect, create[s] 'a situation where what would be permissible under the State law becomes a violation of the local law’ ” (id., at 644, quoting Wholesale Laundry Bd. v City of New York, 12 NY2d 998, affg on opn at 17 AD2d 327); and (2) the local law imposed " 'prerequisite "additional restrictions” ’ ” upon the rights and obligations created by State law (125 AD2d, at 645, citing F. T. B. Realty Corp. v Goodman, 300 NY 140).

We granted defendant leave to appeal and now reverse the order of the Appellate Division.

Analysis starts with a recognition that although the constitutional home rule provision confers broad police powers upon local governments relating to the welfare of its citizens, local governments may not exercise their police power by adopting a law inconsistent with the Constitution or any general law of the State (NY Const, art IX, § 2 [c]; New York State Club Assn. v City of New York, 69 NY2d 211, 217, probable jurisdiction noted — US —, 108 S Ct 62; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 105; Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683; People v Cook, 34 NY2d 100, 105-106). A local law may be ruled invalid as inconsistent with State law not only where an express conflict exists between the State and local laws, but also where the State has clearly evinced a desire to preempt an entire field thereby precluding any further local regulation (New York State Club Assn. v City of New York, supra, at 217; People v New York Trap Rock Corp., 57 NY2d 371, 378; People v De Jesus, 54 NY2d 465, 468-470; People v Cook, supra, at 109; Matter of Ames v Smoot, 98 AD2d 216, 217-219, appeal dismissed 62 NY2d 804). Where it is determined that the State has preempted an entire field, a local law regulating the same subject matter is deemed inconsistent with the State’s overriding interests because it either (1) prohibits conduct which the State law, although perhaps not expressly speaking to, considers acceptable or at least does not proscribe (New York State Club Assn. v City of New York, supra, at 221; Monroe-Livingston Sanitary Landfill v Town of Caledonia, supra, at 683; see also, Wholesale Laundry Bd. v City of New York, 12 NY2d 998, affg on opn at 17 AD2d 327, 327-330, supra) or (2) imposes additional restrictions on rights granted by State law (see, e.g., Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350-352; F. T. B. Realty Corp. v Goodman, 300 NY 140, 147-148, supra). Such laws, were they permitted to operate in a field preempted by State law, would tend to inhibit the operation of the State’s general law and thereby thwart the operation of the State’s overriding policy concerns (New York State Club Assn. v City of New York, supra, at 217, 221; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 108, supra; see also, Floyd v New York State Urban Dev. Corp., 33 NY2d 1, 7).

In this case, plaintiff does not argue, nor could it, that the provisions of Local Law No. 12 expressly conflict with the provisions of article 39. No right or benefit is expressly given to a manufacturer of cesspool additives by the State law which has then been curtailed or taken away by the local law (see, e.g., Robin v Incorporated Vil. of Hempstead, supra, at 348-350; Matter of Kress & Co. v Department of Health, 283 NY 55, 58-60). Rather, the State law expressly imposes an obligation on manufacturers of cesspool additives • to provide information relating to the environmental impact of their products. The fact that both the State and local laws seek to regulate the same subject matter does not in and of itself give rise to an express conflict (see, Council for Owner Occupied Hous. v Koch, 119 Misc 2d 241, 244-245, affd for reasons stated below 61 NY2d 942; Sonmax, Inc. v City of New York, 43 NY2d 253, 257-258; Town of Clifton Park v C. P. Enters., 45 AD2d 96, 97-98). Therefore, as defendant argues, in the absence of an express conflict, whether the local law is invalid as inconsistent with the State’s overriding interest turns on whether the State has preempted the entire field of sewage system cleaners and thus precluded any further regulation by localities (New York State Club Assn. v City of New York, 69 NY2d 211, 221-222, supra; People v De Jesus, 54 NY2d 465, 468-470, supra; People v Cook, 34 NY2d 100, 109, supra; Matter of Ames v Smoot, 98 AD2d 216, 218-219, supra). We agree with defendant that Local Law No. 12 has not been preempted by article 39 of the ECL.

Although the intent to preempt need not be express (Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 105, supra), we are satisfied that the Legislature has not impliedly evinced its desire to preclude the possibility of local regulation of sewage system cleaners (see, id., at 105-107; People v New York Trap Rock Corp., 57 NY2d 371, 377-378, supra; People v De Jesus, supra). No preemptive intent is evident from either the Legislature’s declaration of State policy in ECL 39-0101 or the statutory scheme which has been enacted (see, e.g., Consolidated Edison Co. v Town of Red Hook, supra; People v De Jesus, supra; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350, supra; Dougal v County of Suffolk, 102 AD2d 531, 532-534, affd on opn below 65 NY2d 668).

In the declaration accompanying article 39, the Legislature stated that "the public policy of this state [is] to prevent the pollution of water resources in restricted geographical areas through the use of sewage system cleaners and additives by establishing a regulatory program restricting the use of such products” (ECL 39-0101). The legislative findings state that certain halogenated and aromatic hydrocarbon chemicals "used as sewage system cleaners are a significant and unnecessary source of groundwater contamination * * * When used by homeowners to unblock or deodorize sewage systems they are introduced into the groundwater where they have adverse effects on the health and environment of residents of restricted geographical areas. This act [L 1980, ch 732] serves to eliminate the introduction of these toxic chemicals into Long Island groundwaters” (L 1980, ch 732, § 1). Although at first glance these statements would appear to be quite expansive, entirely absent is any desire for across-the-board uniformity for the protection of the Long Island water supply (see, e.g., Consolidated Edison Co. v Town of Red Hook, supra, at 105-106; People v De Jesus, 54 NY2d 465, 468-470, supra). Moreover, article 39 is expressly directed at eliminating only certain toxic chemicals from polluting the Long Island water supply and is not directed at eliminating the introduction of all potentially toxic chemicals in the Long Island groundwater; hence, although both article 39 and the local law share the same goal — protection of the Long Island water supply— the scope of article 39 is not nearly as broad as plaintiff contends and, as we have stated in the past, that the State and local laws touch upon the same area is insufficient to support a determination that the State has preempted the entire field of regulation in a given area (People v New York Trap Rock Corp., 57 NY2d 371, 378, supra; Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683, supra; People v Judiz, 38 NY2d 529, 531-532).

Similarly, the statutory scheme enacted by the Legislature is not so broad in scope or so detailed as to require a determination that article 39 has superseded all existing and future local regulation. Although section 39-0107 of the ECL empowers the Commissioner of the DEC to prohibit or restrict other chemical materials not expressly identified in ECL 39-0103 (4), the Commissioner has not been vested expressly or implicitly with exclusive jurisdiction over these matters, nor does the structure of article 39 impose its own direct controls at the local level by, for example, creating local environmental boards with the power to prohibit or restrict other potentially toxic materials (see, People v De Jesus, 54 NY2d 465, 469, supra), or issuing detailed instructions to localities concerning procedures to be employed in fostering compliance with the provisions of article 39 (see, Dougal v County of Suffolk 102 AD2d 531, 533, supra), either of which would indicate that the State regulatory scheme was to take precedence over and supplant any local regulatory scheme.

Although an express statement of preemption is not required, it is significant that no such statement appears in the statute, considering that article 39 was enacted shortly after the enactment of Local Law No. 12. Moreover, because no express superseder clause is found anywhere in article 39, it is significant that the Department of Environmental Conservation believed that the statute was not intended to preempt local legislation (cf., Matter of Northeast Mines v State of New York Dept. of Envtl. Conservation, 113 AD2d 62, 64, Iv denied 68 NY2d 612 [State statute contains an express superseder clause]). Contrary to plaintiff’s contentions, that the two laws share the same goal, that the local law does not address a uniquely local problem or that the local law does not proscribe the use of chemical additives which cannot be sold or distributed in Suffolk County does not lead to the conclusion that article 39 of the ECL was intended to preempt all local legislation bearing on sewage system cleaners

Having determined that article 39 has not preempted Local Law No. 12, plaintiff’s argument that local law prohibits what State law would allow and is therefore invalid is meritless for as we stated most recently in New York State Club Assn. v City of New York (69 NY2d 211, 221-222, supra, quoting People v Cook, 34 NY2d 100, 109, supra): " 'This statement of the law is much too broad. If this were the rule, the power of local governments to regulate would be illusory’. Rather, the general principle set forth in Wholesale Laundry [supra] applies only when the Legislature has 'evidenced a desire that its regulations should pre-empt the possibility of varying local regulations’ [People v Cook, supra; see also, Consolidated Edison Co. v Town of Red Hook, supra, at 107-108] or when the State specifically permits the conduct prohibited at the local level (see, Matter of Kress & Co. v Department of Health, 283 NY 55, 59 [supra] [other citation omitted]).” (See also, Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683, supra; Niagara Recycling v Town of Niagara, 83 AD2d 316, 330.)

We have considered plaintiff’s remaining arguments and find them to be without merit. Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiff’s motion for summary judgment denied, defendant’s cross motion for summary judgment granted and judgment entered in defendant’s favor declaring Suffolk County Local Law No. 12 of 1980 to be valid.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacos a concur.

Order reversed, etc.

      . Apparently, no regulations have as yet been promulgated.

      . Plaintiffs Federal due process challenge to the local law is not before this court and we express no view as to the merits of that challenge.


text:
    The People of the State of New York, Appellant, v Leonard J. Groff, Respondent.
    Argued November 9, 1987;
    decided December 21, 1987

      POINTS OF COUNSEL

      Larry M. Himelein, District Attorney, for appellant.
    I. It was proper to allow the victim to testify before the Grand Jury. (People v Johnson, 185 NY 219; People v Gallo, 69 AD2d 1001; People v Di Falco, 44 NY2d 482; People v Gonzalez, 125 Misc 2d 192; People v Yonko, 34 NY2d 825; People v Nisoff, 36 NY2d 560; People v Parks, 41 NY2d 36; People v Morales, 118 AD2d 663; People v Kalicki, 49 AD2d 1032; People v Bockeno, 107 AD2d 1051.) II. There was sufficient corroboration of the unsworn testimony to sustain this indictment. (People v Daniels, 37 NY2d 624; People v Lipsky, 57 NY2d 560; People v Malizia, 4 NY2d 22; People v Cunningham, 48 NY2d 938; People v Kohut, 30 NY2d 183; People v Arce, 42 NY2d 179; People v Dory, 59 NY2d 121; People v Pough, 107 AD2d 521; People v Masse, 5 NY2d 217; People v Masiano, 253 App Div 454.)

      Alan L. Spears for respondent.
    I. The District Attorney erred in allowing the child witness to testify. (People v Nisoff, 36 NY2d 560; People v Doellner, 87 AD2d 987; People v Gallo, 69 AD2d 1001.) II. There was insufficient corroboration of the unsworn testimony. (People v Oyola, 6 NY2d 259; People v Bravender, 35 AD2d 1035; People v Brewer, 94 AD2d 812; People v St. John, 74 AD2d 85; People v Doellner, 87 AD2d 987.)
   OPINION OF THE COURT

Simons, J.

Defendant has been charged with raping and sexually abusing a four-year-old girl in violation of Penal Law § 130.35 (3) and § 130.65 (3). He moved to dismiss the indictment, claiming the victim was improperly permitted to testify before the Grand Jury without being sworn and that her unsworn testimony was not sufficiently corroborated to support the charges. County Court granted the motion on both grounds and dismissed the indictment. The Appellate Division affirmed, without opinion.

The record establishes a legal basis for permitting the victim to testify without administering the oath. The critical issue is the standard of corroboration required by CPL 60.20 to establish a prima facie case when proof of the charges depends upon the testimony of the unsworn victim. The statute is silent on the question and there have been substantial changes in public policy since this court last addressed it (see, People v Oyola, 6 NY2d 259). We now hold that the evidence is sufficient if the unsworn victim’s testimony is corroborated by evidence tending to establish the crime and connecting defendant with its commission.

I

The victim was four years old when she appeared before the Grand Jury. The prosecutor questioned her extensively about herself and her family. She answered the questions readily but stated she did not know the difference between telling the truth and telling a lie. Accordingly, the prosecutor permitted her to testify without being sworn. Defendant contends he erred in doing so.

CPL 60.20 provides that a child under 12 may testify without being sworn if the court is satisfied that the witness possesses sufficient intelligence and capacity to justify receiving the evidence. At the Grand Jury stage of a criminal proceeding, determinations of witness competency must be made by the District Attorney (CPL 190.30 [6]). Defendant contends, and County Court agreed, that the indictment must be dismissed because the District Attorney did not make a finding that the victim did not understand the nature of an oath or that she possessed the capacity to testify without being sworn. In our view, the record demonstrates that the District Attorney evaluated the victim’s testimonial capacity and made the necessary determinations. His decision should not be disturbed on review, therefore, in the absence of clear error (cf., People v Parks, 41 NY2d 36, 46).

At the outset of the Grand Jury proceeding the prosecutor read CPL 60.20, thereby indicating on the record that he would have to make a determination regarding the victim’s ability to give sworn or unsworn testimony, and advising the jury that corroboration was necessary for unsworn testimony. He then conducted voir dire of her to assess her testimonial capacity. His preliminary examination revealed that she could accurately perceive objective conditions, such as the weather outside, she knew her full name, her age, the community where she lived, her mother and father’s names and that her mother was expecting another child. She stated that she did not go to school but she did go to church. When the victim indicated she did not know the difference between telling the truth and lying, however, the District Attorney ruled on the record that she could not be sworn but proceeded to question her about the crime and defendant’s part in it.

Because the prosecutor stated on the record that he would have to determine whether the victim was sufficiently intelligent to give unsworn testimony, conducted voir dire which revealed that she had the capacity to perceive and recall events, and only questioned her after explicitly stating his finding that the oath could not be administered to her, the record, by clear implication, establishes the District Attorney complied with CPL 60.20. That he did not expressly state his findings on the record does not require dismissal of the indictment because it is apparent that he made the requisite determinations (cf., People v Johnson, 185 NY 219, 228 [court presumed to have determined infant’s capacity to testify despite silence of record on the issue]).

II

The evidence before the Grand Jury established that defendant is a relative of the victim. On the date in question, he lived with his parents and was approximately 26 years old. The victim testified before the Grand Jury that on the night of the crime she and her parents attended a family picnic at the home of defendant’s parents where they had a campfire and a cookout. Defendant was there and after dark he took her into the woods behind the house. She then testified, and demonstrated with anatomically correct dolls, how defendant removed her pants and his own, laid on the ground and pulled her down on top of him, and had sexual intercourse with her. She testified that she cried when defendant put his penis between her legs because "it hurt” and defendant then stopped. After they put their clothes back on, defendant told her not to tell anyone what happened. She also stated that burdocks stuck to her while she was in the woods.

The girl’s parents also testified before the Grand Jury. Her mother stated that 9 or 10 people attended the family gathering and that she was inside the house with several others watching television at the time defendant allegedly took her daughter into the woods. She assumed her daughter was safe because "everyone else [was] around.” The victim’s father testified that at dusk on the evening of the gathering, he was playing horseshoes on the front lawn at the grandparents’ house with a man named "Buddy”. He recalled his daughter disappearing for approximately 15 minutes but thought nothing of it at the time because he assumed she had gone inside to go to the bathroom. Defendant was also absent during this time. After about 15 minutes the victim reappeared from the back of the house. She was crying and asked her father to remove burdocks from her hair.

The victim said nothing about the incident that night but her mother testified that after the picnic her daughter’s personality changed and she became withdrawn. She also observed her daughter crying when urinating and noticed a "very bad redness” in her vaginal area. Because the victim’s mother had to work, her grandfather first took the victim to a doctor to check the rash. The doctor prescribed medication. When the victim returned for a follow-up visit with her mother, the doctor informed the mother that he suspected her child had been sexually abused. That evening the mother asked her daughter if anyone had touched her "down there” and the victim reluctantly indicated that defendant had after he took her into the woods on the night of the picnic.

The victim’s doctor testified that on the girl’s first visit he observed a vaginal rash and became concerned that she might have been abused because, despite the lack of infection, she experienced pain when urinating. During this first visit he conducted a cursory examination, and as a result, believed her hymen had been ruptured. When she returned for the followup visit he and a gynecologist conducted a more thorough examination and discovered that her hymen was still intact. The doctor testified the existence of a hymen was not conclusive, however, and that the irritation could have been caused by partial penetration. He referred the family to the child abuse authorities.

¡II

The Criminal Procedure Law provides that a Grand Jury may indict when the evidence before it is legally sufficient, that is, if the evidence establishes all the elements of the crime, and establishes reasonable cause to believe defendant committed the crime (CPL 190.60). The first half of the test refers to the quantum of evidence; the second to the "degree of certitude” required (People v Jennings, 69 NY2d 103, 115). The statute also provides that there shall not be legally sufficient evidence of the crime before the Grand Jury when corroboration is lacking if corroboration is required for conviction. Clearly, CPL 60.20 requires corroboration of the testimony of unsworn witnesses and the question before us is how much.

Although the trier of fact generally is responsible for determining the credibility of witnesses, because the law views some witnesses with skepticism it requires corroboration of their testimony as a matter of fairness to the defendant. The requirement reflects public policy considerations and the quantum of corroboration necessary varies from onerous to minimal depending on the purpose of the applicable corroboration rule. The most stringent corroboration standard in the Nation was found in former section 130.15 of the Penal Law, now repealed, which required that the victim’s testimony in certain sex offenses be corroborated as to every material element of the crime (see generally, People v Fuller, 50 NY2d 628, 635; People v Daniels, 37 NY2d 624, 628; People v Friedman, 139 App Div 795, 796; Note, Corroborating Charges of Rape, 67 Colum L Rev 1137, 1138-1139). The requirement reflected a distrust of female complainants. At the other end of the spectrum is the minimal corroboration mandate set forth in CPL 60.50, which requires the corroboration of a defendant’s confession by evidence, of whatever weight, tending to establish the crime was committed. "Its purpose is to avoid the possibility that a crime may be confessed when, in fact, [none] has been committed” (People v Booden, 69 NY2d 185, 187; see also, People v Lipsky, 57 NY2d 560, 570). The accomplice standard set forth in CPL 60.22 is somewhere between these extremes and requires only that accomplice testimony be supported by evidence tending to link the accused to the crime. It rests on the recognition that such testimony is suspect because accomplices generally are persons of disrepute, often motivated by a desire to curry favor with the authorities (People v Daniels, supra, at 629). A similar intermediate standard is prescribed by Penal Law § 130.16 which requires corroboration for those sex offenses in which lack of consent is an element where the victim lacks mental capacity. Its requirement is satisfied when the victim’s testimony is supported by evidence tending to establish a crime was committed and that the defendant committed it (see generally, People v Fuller, 50 NY2d 628, 635, supra).

The purpose of requiring corroboration of unsworn testimony, of course, is to ensure its trustworthiness. A witness incapable of comprehending the oath may not understand the importance of truthfulness in criminal proceedings or the impact false testimony could have on the accused. Thus, the law requires that before unsworn statements can support a conviction they must be corroborated to elevate their trustworthiness to the level associated with sworn testimony (see generally, People v Howard, 122 AD2d 811; People v Brewer, 94 AD2d 812; People v St. John, 74 AD2d 85, appeal dismissed 53 NY2d 704).

Defendant contends that we established the standard for corroborating unsworn testimony in People v Oyola (6 NY2d 259, 262, supra; see also, People v Porcaro, 6 NY2d 248). In that case, the defendant was convicted of impairing the morals of a minor. We held the evidence was insufficient and thus reversed the conviction. Because the victim in Oyóla testified under oath, there was no need for the court to consider the standard of corroboration for unsworn testimony. Nevertheless, the plurality opinion stated in dictum that unsworn testimony must be strictly corroborated by evidence extending to every material element of the charged crime. The court reached that conclusion by applying to unsworn testimony the stringent sex offense corroboration rule required by the former Penal Law, a requirement which has now been repealed. The consequence of the ruling, which was not required by the language of the unsworn testimony statute, was to require greater corroboration for sex cases involving unsworn witnesses than that required in nonsex cases involving similar witnesses.

The Oyóla decision, and the corroboration rule it applied, rested on policy considerations expressed in the penal statutes of the time which insisted on clear proof of sexual misconduct because of general skepticism about accusations of misconduct which were easily made but difficult to disprove. Since the Oyóla decision in 1959, however, there has been a substantial shift in the public policy of this State. The detection and prosecution of sex offenses in general, and of sexual abuse of children in particular, has become a major public concern (see, Matter of Nicole V., 71 NY2d 112 [decided herewith]). As a result, the requirement for corroboration in sex crimes was largely abandoned when Penal Law § 130.15 was repealed in 1974 (L 1974, ch 14, § 1) and the remaining requirement for corroboration of sex offenses with respect to child victims was eliminated in 1984 (L 1984, ch 89). These changes were made in the belief that defendants are sufficiently protected from false charges by other safeguards and that in child abuse cases the difficulty of obtaining corroborative evidence, the need to protect child victims and the unfairness of treating those victims differently from victims of crime in general, warranted repeal of the statute (see, Governor’s Mem approving L 1984, ch 89, 1984 NY Legis Ann, at 73; see also, Governor’s Mem approving L 1974, ch 14, 1974 NY Legis Ann, at 371-372). Indeed, some have urged that all corroboration requirements for sex offenses should be removed (see, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 130.16; see also, Ludwig, The Case for Repeal of the Sex Corroboration Requirement in New York, 36 Brooklyn L Rev 378 [1970]). Thus, whatever justification in public policy there may have been for the Oyóla dictum at the time it was stated has been destroyed by repeal of the statutes on which it was founded.

Because New York is one of the few States, indeed it may be the only State which allows unsworn testimony and allows it only in criminal proceedings (see, Commentary, Proposed New York Code of Evidence § 603, at 114 [1980]), there appears to be no judicial authority which recognizes a standard of corroboration for unsworn testimony in nonsex offenses. Nevertheless, the perceived rule has been that if the charges do not pertain to sexual misconduct, the corroborative evidence is legally sufficient if it tends to establish the crime and that defendant committed it (see, Pitler, New York Criminal Practice Under the CPL § 12.6 [1972]; Pitler, "Existentialism” and Corroboration of Sex Crimes in New York: A New Attempt to Limit "If Someone Didn’t See it, it Didn’t Happen”, 24 Syracuse L Rev 1, 31 [1972]). We conclude that this is the appropriate corroboration standard for all cases where unsworn testimony is received. Such a rule not only makes the corroboration standard under CPL 60.20 uniform, regardless of the subject matter of the prosecution, but it also serves to harmonize the statute with the corroboration standard found in Penal Law § 130.16, which applies to victims suffering a mental defect, who similarly may not appreciate the gravity of their testimony. Indeed, CPL 60.20 specifically refers to children under 12 and those suffering from mental disease or defect and permits both to give unsworn testimony. Section 130.16 provides that testimony in certain sex offense cases by persons lacking mental capacity must be corroborated by evidence tending to establish that the charged crime was committed and that the defendant was the perpetrator. That standard is appropriate for all unsworn witnesses. It satisfies the fairness concerns underlying corroboration requirements generally and comports with the current public policy of the State.

IV

Applying this rule to the indictment before us, the victim’s unsworn testimony was sufficiently corroborated.

First, there was independent evidence tending to show that the crimes of rape and sexual abuse were committed. It established that the victim left a party of relatives to go into the woods after dark and that she returned crying after about 15 minutes. After the picnic her personality changed and she became withdrawn, she developed a vaginal rash and experienced pain when urinating. Her physician could find no evidence of infection or other cause for the discomfort and, suspecting child abuse, referred her parents to the child abuse authorities. He originally believed the child’s hymen had been ruptured. Subsequent examination revealed it intact, but the doctor testified that partial penetration could occur without a rupture and could explain her physical problems.

Second, there was evidence tending to connect defendant to the crime. As with accomplice testimony, "[a]ll that is necessary is to connect the defendant with the crime in such a way that the jury may be reasonably satisfied that the [witness] is telling the truth” (People v Daniels, 37 NY2d 624, 630, supra; People v Malizia, 4 NY2d 22, 27). "[M]atters which in themselves may be of seeming indifference may be 'so harmonized " 'with the [witness’] narrative as to have a tendency to furnish the necessary connection between the defendant and the crime’ ” ’ ” (People v Smith, 55 NY2d 945, 946). Thus, under certain circumstances, we have held that opportunity to commit the crime can suffice to establish identity (see, People v Masse, 5 NY2d 217).

The evidence before the Grand Jury established that the crime took place at the family gathering. There were only 8 or 9 people present, including the victim and a one-year-old infant. The group also included the victim’s parents and her grandparents and the victim’s father testified he was playing horseshoes with a man named "Buddy” at the time his daughter disappeared. Thus, there were at most 1 or 2 men, including defendant, who could have victimized the girl and there was testimony that defendant was not seen during the 15 minutes she was gone. When the victim reappeared, she came from behind the house, was covered with burdocks — thus supporting her claim that she had been in the woods — and was crying. Under these circumstances, the evidence of defendant’s opportunity sufficiently "harmonizes” with the child’s unsworn testimony and tends to identify him as the perpetrator, thereby supplying sufficient corroboration of identity pursuant to CPL 60.20.

Accordingly, the order of the Appellate Division should be reversed and the indictment reinstated.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

       CPL 60.20 provides:
      "1. Any person may be a witness in a criminal proceeding unless the court finds that, by reason of infancy or mental disease or defect, he does not possess sufficient intelligence or capacity to justify the reception of his evidence.
      "2. Every witness more than twelve years old may testify only under oath unless the court is satisfied that such witness cannot, as a result of mental disease or defect, understand the nature of an oath. A child less than twelve years old may not testify under oath unless the court is satisfied that he understands the nature of an oath. If the court is not so satisfied, such child or such witness over twelve years old who cannot, as a result of mental disease or defect, understand the nature of an oath, may nevertheless be permitted to give unsworn evidence if the court is satisfied that the witness possesses sufficient intelligence and capacity to justify the reception thereof.
      "3. A defendant may not be convicted of an offense solely upon unsworn evidence given pursuant to subdivision two.”