New York’s new twist on comparative negligence

Carlos Rodriguez was working for the NYC Department of Sanitation when an accident at his job left him permanently disabled. Some co-workers of his had been backing a truck into their employer's garage when the truck slid into a parked car. This caused the car to skid into Rodriguez, pinning him against a nearby rack of tires and injuring his spine.

After Rodriguez sued the City as his employer, the question that eventually confronted the Court of Appeals was whether a plaintiff could get partial summary judgment on the issue of a defendant's liability even where the plaintiff himself might have been comparatively negligent. As the Appellate Division, First Department had noted, there was some evidence that the plaintiff was “injured while walking behind a truck slowly moving backwards which he was not supposed to do.” (It's not clear if there was any obstacle to the defendant requesting summary judgment as to the plaintiff’s comparative negligence, but going forward we can expect motions on this issue to proliferate.)

This is an issue that has stymied many a plaintiff moving for summary judgment. That a defendant's negligence caused a certain event could be obvious, yet many courts would still deny summary judgment because of fact issues as to whether the plaintiff’s own acts contributed to his or her injuries. The possibility that the defendant was not the only cause of the accident often left courts reluctant to hold the defendant negligent as a matter of law.

To resolve this issue in Rodriguez, the Court undertook a statutory interpretation analysis as to two provisions of the CPLR. CPLR 1411 says that any culpable conduct attributable to the plaintiff, including contributory negligence or assumption of the risk, does not bar recovery. And CPLR 1412 states that "culpable conduct claimed in diminution of damages ... shall be an affirmative defense to be pleaded and proved by the party asserting the defense."

In the Court’s view, agreeing with the defendant's argument—that the plaintiff must prove not only the defendant's negligence but also the absence of the plaintiff’s own negligence—would be at odds with the plain language of 1412. This reading would “flip the burden” and require the plaintiff to prove an absence of comparative fault almost as a prima facie part of the case, rather than the defendant asserting comparative fault as a defense.

The Court also considered affirmative defenses under CPLR 3212, which says that a motion for summary judgment “shall show that there is no defense to the cause of action.” It concluded that this did not support the defense argument either, since "statutory interpretation analysis is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff's prima facie cause of action for negligence.” And, the Court continued, comparative negligence “is not a bar to plaintiff's recovery, but rather a diminishment of the amount of damages.”

After discussing how this new holding comports with past jurisprudence, the Court finally explained how partial summary judgment on the issue of liability helps narrow the number of issues a jury must consider. In a negligence case, a jury is typically charged with determining whether both the plaintiff and the defendant were negligent, assessing whether their respective negligence caused the injury, and apportioning liability accordingly. But establishing the defendant's liability ahead of the trial can eliminate one or two of these issues — for example, a summary determination as to the defendant's breach of duty and whether the breach contributed to the injury takes much of the burden off the jury.

So what Rodriguez means is that, even if the plaintiff might have been negligent, that may matter at trial, but it doesn't matter right now. For now, the only question is if the defendant was negligent, and in this case, at this juncture, the evidence of defendant's negligence was enough to warrant summary judgment — no matter what the plaintiff did.