Until April 3, 2018 when the New York Court of Appeals handed down Rodriguez v. City of New York, it was well-established law in personal injury litigation in New York that a plaintiff was not entitled to summary judgment if he could not make a prima facie showing he was free of comparative negligence.
The sharply divided Rodriguez court, overturning precedent, held in a controversial 4-3 decision that requiring a plaintiff to make such a showing is inconsistent with Article 14-A of the CPLR, which codified the State’s comparative negligence principles. From now on, a plaintiff responsible for 99 percent of culpability may have an opportunity to prevail on a motion for partial summary judgment. This decision is likely to generate years of appellate advocacy addressing how to maintain an even playing field in the courtroom. In the meantime, we can expect a great deal more summary judgment motion practice in personal injury practice, particularly in the insurance defense world.
The Court of Appeals emphasized that, in this brave new world, New York juries will still be tasked with considering the plaintiff’s and defendant’s culpability together. In cases where partial summary judgment has been granted, the court directed New York trial courts to eliminate two of five questions that have always been directed to the jury prior to deliberations. In cases in which the plaintiff has obtained partial summary judgment on liability, courts will no longer ask juries to consider: (1) whether the defendant was negligent? and (2) whether defendant’s negligence was a substantial factor in causing the injury or the accident? Instead, with defendant’s liability already established as a matter of law, the jury will be asked: (1) whether plaintiff was negligent? (2) whether plaintiff’s negligence was a substantial factor in causing (his or her) own injuries? and (3) what was the percentage of fault of the defendant and what was the percentage of fault of the plaintiff?
The facts of Rodriguez suggest that the plaintiff had a reasonably strong case. Rodriguez was employed by the Department of Sanitation in a garage. He was injured while “outfitting” garbage trucks with tire chains and plows to enable them to clear the streets of snow and ice. While the snowstorm was raging, a co-employee of plaintiff is alleged to have been negligent in guiding the driver of the garbage truck back into the garage. The garbage truck the co-worker was guiding skidded and crashed into a parked car, which propelled into plaintiff causing serious injury. The trial court denied the motion for summary judgment and the First Department affirmed.
The court rejected the defendant’s contention that comparative fault should be considered a liability defense. As the Court of Appeals pointed out, “Comparative negligence 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 as CPLR 1411 plainly states, is not a bar to plaintiff’s recovery, but rather a diminishment of the amount of damages.”
In an eloquent dissent, the Hon. Michael J. Garcia accused the majority of ignoring the “holistic perspective” that had been adopted in prior Court of Appeals jurisprudence addressing comparative fault. In essence, Judge Garcia argued that a comparative fault analysis requires a court to consider the “culpable conduct attributable to the (plaintiff as) compared with the total culpable conduct which caused the damages” and to “fix the relationship of each party’s conduct to the injury sustained.” If the jury has a “preconceived idea” of the defendant’s liability, this entire process becomes “inherently unfair”. Judge Garcia analogized such a process to a batter having to enter the “batter’s box with two strikes already called” (adopting the First Department’s description). Arguably, no purpose is served by granting summary judgment where there is such a significant overlap between the proof of damages and the issues by which liability is determined. As the Court of Appeals ruled in an earlier case, Ugarriza v. Schmieder, negligence cases do not lend themselves to summary judgment, even in the absence of contested facts, because “the very question of negligence is itself a question for jury determination.”
Judge Garcia’s dissent states what should have been obvious to the majority. Although the majority promotes its approach by pointing to the elimination of the first two questions a jury must answer, “these questions would not be eliminated by a grant of partial summary judgment, as an assessment of defendant’s negligence would be required in order for the jury to determine comparative fault and damages.”
It is the expectation of the Court of Appeals that “experienced” trial courts will craft appropriate jury instructions to ensure that the jury properly considers the comparative fault of both parties but at same time instructing “that the issue of defendant’s negligence, and in some cases, the related proximate cause question, have been previously determined as a matter of law“. (emphasis added). However, the Rodriguez court offers no guidance concerning how trial courts will handle the unfair prejudice of a partial summary judgment ruling in jury selection, in opening and closing statement, and in jury instructions.
On what past experience does the Court of Appeals rest its sanguine belief that trial figures will figure this out all on their own? Added to this judicial brew is how trial courts should address questions of fact as to causation and foreseeability on motions for partial summary judgment. In the Appellate Division, the court determined that summary judgment was also inappropriate because of the existence of questions of fact as to causation and foreseeability. Unlike comparative fault, causation and foreseeability are without question elements of a negligence cause of action. These elements of plaintiff’s negligence claim, raised by defendant on appeal, are only addressed in a footnote in which the Court of Appeals states that it did not reach these issues in making its determination. The case was remitted to the First Department for consideration of these very issues. After all is said and done, the Appellate Division may well decide to deny the motion for summary judgment on an alternative ground not examined by the high court.