It’s long been the law in ¾ of New York that, in order to win summary judgment in a personal injury case, plaintiffs also had to show that they weren’t themselves also negligent.
That three-fourths fraction exists because, as I noted back in 2010, there was a split in the four New York appellate departments regarding this issue.
That split case law is now history, courtesy of (naturally) a 4-3 decision today in New York’s Court of Appeals in Rodriguez v. City of New York.
The Court outlined the issue succinctly:
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. Stated differently, to obtain partial summary judgment in a comparative negligence case, must plaintiffs establish the absence of their own comparative negligence. We hold that a plaintiff does not bear that burden.
Let’s take a garden variety matter of an individual crossing in the crosswalk, with the light in her favor. She gets hit by a car making a turn, whose driver failed to yield the right of way to the pedestrian.
Assuming that there is no question that she had the light, and was in the crosswalk, and was injured as a result of the collision, most people would have thought she could remove this issue from a trial and have the court determine the issue of the driver’s negligence as a matter of law.
But that wasn’t the case in New York, unless the pedestrian also proved that she was paying attention and didn’t do anything wrong. Some of our courts would deny the motion based on the issue of potential comparative fault, giving the driver a windfall by making his own negligent conduct a jury issue even though it was clear he broke the law and contributed to the injuries.
The Court used the example of a statutory violation being the basis of a motion for summary judgment being denied because, potentially, the plaintiff might also have some culpability:
For example, assuming in a hypothetical case a defendant’s negligence could be established as a matter of law because defendant’s conduct was in violation of a statute (see PJI 2:26) and further assuming plaintiff was denied partial summary judgment on the issue of defendant’s negligence because plaintiff failed to establish the absence of his or her own comparative negligence, the jury would be permitted to decide the question of whether defendant was negligent and whether defendant’s negligence proximately caused plaintiff’s injuries.
This was the windfall the Court wrote of: Why should the jury get the question of defendant’s negligence if it could be determined as a matter of law?
This is what we now refer to as “old law.” It’s in the dumpster.
The point of the underlying statutes, the court reasoned, was that the issue of comparative negligence was solely to deal with diminishing any potential recovery. It has no bearing on establishing whether a defendant is negligent.
Thus, a typical verdict sheet might have the five questions below, and if any of them can be resolved as a matter of law then that is the proper procedure for a trial court on hearing a motion for summary judgment:
1. Was the defendant negligent?
2. Was defendant’s negligence a substantial factor in causing [the injury or the accident]?
3. Was plaintiff negligent?
4. Was plaintiff’s negligence a substantial factor in causing (his or her) own injuries?
5. What was the percentage of fault of the defendant and what was the percentage of fault of the plaintiff?
What was the rationale for overturning the prior decision of the court, in Thoma v Ronai? The majority reasoned (and the dissent disputed) that the parties in Thoma didn’t raise the relevant parts of our civil practice law and rules so that they could be analyzed. So be it.
The net result of this decision will, I think, be two-fold:
- Plaintiffs that previously had had summary judgment denied will now move to reargue based on the new interpretation of the law, if possible; and
- More issues will be resolved prior to trial, leading to more settlements. Because it is uncertainty about how a jury will resolve an issue that most often hinders settlements.
When I wrote about this split in the appellate departments back in 2010, I said:
When the split between the lower appellate courts hits the Court of Appeals, hopefully it will see the wisdom of resolving issues on the papers in advance of trial if there is no issue of fact on that particular issue. There is no compelling reason that I see that partial summary judgment on the issue of liability should not be available if the particular issue raised doesn’t present a factual issue for a jury to resolve.
It feels good being able to revisit that issue and see it come out this way.
Good post. Result reached by the majority seems entirely proper. But what troubles me is this passage: “When a defendant’s liability is established as amatter of law before trial, the jury must still determine whether the plaintiff was negligent and whether such negligence was a substantial factor in causing plaintiff’s injuries. If so, the comparative fault of each party is then apportioned by the jury. Therefore, the jury is still tasked with considering the plaintiff’s and defendant’s culpability together. As a practical matter, a trial court will instruct the jury in a modified version of Pattern Jury Instruction 1:2B 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.”
The “some cases” reference – What cases would proximate cause not be decided if liability is granted?
The “some cases” reference – What cases would proximate cause not be decided if liability is granted?
The defense is raised all the time that even if the D was negligent that this negligence wasn’t a cause of injury. The usual defense is that the injury was pre-existing.