concurs, with the following memorandum: I agree wholeheartedly with my colleagues’ decision to affirm insofar as appealed from the order denying the motion of the defendant School District for summary judgment, and their conclusion that the holding in Barton v Bee Line (238 App Div 501) is inapplicable to the instant action. I add this concurrence solely to observe that, in citing Barton, the majority has merely held that it is inapplicable to the case before us. Therefore the question of whether Barton should be followed in the future has not been reached.
The issue raised in Barton was whether a minor female incapable of consenting to sexual contact pursuant to the governing Penal Law standards of the time (cf. Penal Law § 130.05 [3] [a]) could, nevertheless, be capable of consenting to sexual contact for purpose of imposing civil liability against the offending male actor. The Barton Court held that “a female under the age of eighteen has no cause of action against a male with whom she willingly consorts, if she knows the nature and quality of her act” (Barton v Bee Line, supra at 503). The 15-year-old plaintiffs claim for damages resulting from her alleged rape by a bus driver was barred when the court found she “consented,” notwithstanding that the bus driver had been convicted of rape in a criminal proceeding where the complainant was presumed as a matter of law of being incapable of consent.
At the time it was decided in 1933, Barton was contrary to the contemporaneous weight of authority from New York (see Dean v Raplee, 145 NY 319; Boyles v Blankenhorn, 168 App Div 388, affd 220 NY 624; Graham v Wallace, 50 App Div 101; Colly v Thomas, 99 Misc 158), and from many other jurisdictions which did not preclude civil recovery by an underaged *562victim for an adult’s sexual predations (see Gaither v Meacham, 214 Ala 343, 108 So 2; Herman v Turner, 117 Kan 733, 232 P 864; Watson v Taylor, 35 Okla 768, 131 P 922; Hough v Iderhoff, 69 Or 568, 139 P 931; Priboth v Haveron, 41 Okla 692, 139 P 973; Altman v Echerman, 132 SW 523 [Tex]; Bishop v Liston, 112 Neb 559, 199 NW 825; but see Paul v Frazier, 3 Mass 71). The weight of later authority likewise generally permits a right of recovery (see Doe v Orangeburg County School Dist. No. 2, 335 SC 556, 518 SE2d 259; Angie M. v Superior Ct. of San Diego County, 37 Cal App 4th 1217, 44 Cal Rptr 2d 197; Wilson v Tobiassen, 97 Or App 527, 77 P2d 1379; Robinson v Moore, 408 SW 2d 582 [Tex]; Johnson v Harris, 187 Okla 239, 102 P2d 940; Glover v Callahan, 299 Mass 55, 12 NE2d 194; Parsons v Parker, 160 Va 810, 170 SE 1; but see Doe v Mama Taori’s Premium Pizza, — SW2d —, 2001 WL 327906 [issue of minor’s consent relevant to damages]; Braun v Heidrich, 62 ND 85, 241 NW 599 [teenage female “fornicator” ineligible to recover damages for her willing participation in criminal sexual act]; see generally Restatement [Second] of Torts § 701). In fact, since Barton was decided in 1933, only a single, factually-unique New York case, Aadland v Flynn (27 Misc 2d 833, affd 14 AD2d 837), has been determined upon its precedential authority. In my opinion, Barton was of questionable merit when it was decided, and its holding should be reexamined at the appropriate time.
Cases involving the ability of children to consent to sexual contact, and their civil and criminal liabilities, raise difficult and complex concerns that are the subject of numerous scholarly articles (see Phipps, Children, Adults, Sex and the Criminal Law: In Search of Reason, 22 Seton Hall Legis J 1 [1997]; Vandervelde, The Legal Ways of Seduction, 48 Stan L Rev 817 [1996]; Larson, “Women Understand So Little, They Call My Good Nature ‘Deceit’ ”: A Feminist Rethinking of Seduction, 93 Colum L Rev 374 [1993]). Therefore, until such time as this Court is required to determine the complex issue involved, Barton’s precedential value should not be presumed.