On April 3, 2018, a sharply divided Court of Appeals ruled that plaintiffs in comparative negligence cases do not need to show they are free of negligence to succeed on a summary judgment motion when determining a defendant’s liability. While the decision appears to provide trial simplification, it gives plaintiffs an edge because it is unlikely that a jury will give the same weight to evidence presented by a party already found liable than one who is arguing that his comparative fault should be minimized. This will be problematic not only in cases where statutory violations confer automatic liability and evidence of comparative negligence is prohibited (i.e., Labor Law 240), but also in those cases where summary judgment was previously precluded because there was evidence of comparative negligence (i.e., Labor Law 241(6)). In the latter circumstance, courts may now be emboldened to find summary judgment for, e.g., an Industrial Code violation, leaving for trial only the issue of comparative negligence where plaintiff can argue that some percentage of fault must necessarily be on the defendant because the court’s finding of summary judgment requires it.
In Rodriguez v. City of New York, [1] the court held that a plaintiff can be granted partial summary judgment even when his or her comparative fault is in question. Contrary to bifurcated trials or damages-only trials, a defendant must concede its own negligence when asking a jury to find plaintiff at fault, while a plaintiff can argue that his fault is so minimal or inconsequential that the jury should merely let the summary judgment decision stand.
Plaintiff, Carlos Rodriguez, an employee of the New York City Department of Sanitation, was working at a sanitation garage fitting trucks with chains and plows during a snow day. After a member of his team directed the truck driver into the garage, the driver, the guide, and Rodriguez installed the chains. Rodriguez was walking behind the sanitation truck, which was backing up and beeping, when the truck skidded and crashed into a car that pinned him against a wall of tires. Plaintiff suffered significant injuries and is permanently disabled. He sued the City of New York and, following discovery, moved for summary judgment pursuant to CPLR 3212. Justice Freed in the New York Supreme Court held plaintiff was not entitled to summary judgment because “the question of his comparative fault must be resolved at trial.” [2]
In so holding, the lower court relied on Thoma v. Ronai, [3] a plainly-worded, one paragraph Court of Appeals decision that in its entirety reads as follows:
Plaintiff’s concession that she did not observe the vehicle that struck her raises a factual question of her reasonable care. Accordingly, plaintiff did not satisfy her burden of demonstrating the absence of any material issue of fact and the lower courts correctly denied summary judgment. [4]
Moreover, Justice Freed also ruled that summary judgment was not appropriate because there were questions of fact as to causation and foreseeability as well.
The Appellate Division affirmed the decision, finding that “the clear direction of Thoma is that a plaintiff may not be awarded partial summary judgment on the issue of a defendant’s negligence if the defendant has raised an issue of fact as to the plaintiff’s comparative negligence.” [5] The court relied on CPLR article 14A, which decreases a plaintiff’s recovery of damages if he is at fault, and recognized that defendant’s and plaintiff’s liability are almost always overlapping. Indeed, it noted that a trier of fact could determine that plaintiff was 100% at fault and that it was important that “the causal role of each party’s conduct should not be determined in isolation”. [6] The court pointed out that any efficiencies gained through the grant of partial summary judgment would be defeated because defendant should still be permitted to interpose as much evidence as necessary to demonstrate plaintiff’s comparative negligence. It raised the concern that a grant of summary judgment at the motion stage would be akin to forcing “the defendant into the batter’s box with two strikes already called.” [7]
The Appellate Division granted leave to appeal to the Court of Appeals and the question posed was “Was the order of the Supreme Court, as affirmed by this Court, properly made?” [8] Judge Feinman, writing for the majority, ignored the insufficiencies regarding liability on causation and foreseeability and reframed the question presented as “Whether a plaintiff is entitled to partial summary judgment on the issue of a defendant’s liability, when, as here, defendant has arguably raised an issue of fact regarding plaintiff’s comparative negligence.” [9] The court dismissed the other aspects of the motion and answered the question in the affirmative, finding that plaintiff does not bear the burden of showing he did not bear any negligence in causing his injuries.
Although the court emphasized subsection (c) of CPLR 3212 (permitting grant of summary judgment on liability) and CPLR 1411 (“contributory negligence or assumption to risk shall not bar recovery…” [Emphasis added in the original]), neither statute suggests that the fault portion of a trial should be bifurcated. Nonetheless, the court noted that if plaintiff were denied the right to partial summary judgment when comparative fault is in question, it would result in “a possible windfall to defendants” because a jury could find in favor of defendant even if defendant was negligent per se. [10] The court acknowledged that there is no practical purpose to granting summary judgment in a comparative negligence case because “the jury is still tasked with considering the plaintiff’s and defendant’s culpability together.” [11]
However, as Judge Garcia writing for the dissent pointed out, it is precisely that issue, assessing one party’s fault with a “preconceived idea of the other party’s liability that is inherently unfair,” as “determinations of degrees of fault should be made as a whole.” [12] Judge Garcia argued that the facts of this case highlight the unfairness of this new rule, as the two lower courts found an issue of fact as to any liability on the part of the defendant. He further noted that not only did the majority overturn an established and long-settled rule, as evinced by its prior decisions in Thoma and its progeny, but a fairer one. The court had previously held that comparative fault “must be analyzed from a holistic perspective,” because “[a] jury cannot fairly and properly assess plaintiff’s comparative fault without considering defendant’s actions” as the “issues of defendant’s liability and plaintiff’s comparative fault are intertwined.” [13]
Furthermore, the dissent discounted the majority’s claims of judicial efficiency because a finding of partial summary judgment would not eliminate any of the questions presented to the jury. [14] Indeed, a jury would by necessity still have to engage in the simultaneous consideration of both parties’ level of culpability. Thus, no efficiency is gained as the defendant is still entitled to present an all-out case of plaintiff’s culpable conduct, and the jury must also conduct an assessment of defendant’s negligence in order to determine comparative fault.
Given the vagaries of trying cases before judges with heavy caseloads, and despite the court’s expectation that the trial judges will craft appropriate jury instructions, it is more likely that evidentiary rulings will favor a narrowing of the comparative negligence evidence. It also may result in more settlements, since plaintiffs can now obtain summary judgment on liability and make the question of comparative negligence not worth the expense of taking a case to trial.
[1] 2018 N.Y. Slip Op. 02287, 2018 WL 1595658 (2018).
[2] Rodriguez v. City of New York, 2014 WL 10726797, at *2 (Sup Ct., NY County, Oct. 16, 2014, No. 109444/2011, Freed, J.).
[3] 82 NY2d 736, 602 N.Y.S.2d 323 (1993).
[4] Id.
[5] Rodriguez v. City of New York, 142 AD3d 778, 789, 37 NYS3d 93 (1st Dept 2016).
[6] Id. (citing Maniscalco v. New York City Tr. Auth., 95 AD3d 510, at 513 (1st Dept 2012)).
[7] Id. at 782.
[8] Rodriguez, 2018 WL1595658, at *2.
[9] Id.
[10] Rodriguez, 2018 WL1595658, *4.
[11] Id. at *6.
[12] Id. at *9.
[13] Id. (citing Arbegast v. Board of Educ., 65 N.Y.2d 161, 168 (1985)).
[14] Id. at *9.
