April 22nd, 2021

Stupid Lawyer Tricks – Rape edition

When folks read about frivolous or silly legal claims, they invariably ask: What did that person sue for this time? They never seem to ask, what kind of idiotic defense was raised?

Because idiotic defenses don’t make the papers. Until they do.

This week the NY Post blared an ugly headline about my hometown high school:

New Rochelle High School blamed girl for her own rape, lawyer says

Blame the victim for her own rape? Is that what the high school did? The high school that my kids just graduated from?

Well, no. That’s what the lawyer did, and the school now pays the price. I know this because I pulled the Answer from the electronic file and saw that there was only a lawyer signature on the verification — no one from the school district.

The Post just pulled this nugget from an affirmative defense raised in that Answer to the suit.

Affirmative defenses, for the non-lawyers who have tuned in, usually are these types in a personal injury case (of which this is one):

  • Failing to start suit in a timely manner (statute of limitations);
  • Failing to state a claim (fail to make proper allegations that, even if true, would result in the case being tossed out)
  • Claiming comparative negligence (the plaintiff was partly at fault and any jury award should be reduced by a proportionate amount — think tripping on a busted sidewalk)
  • Assumption of risk (like getting hit by a foul ball at a game – this was a sporting event, the event was a foreseeable risk and the plaintiff is 100% barred from suit)

There are obviously many more in a laundry list of defenses that lawyers pick and choose cut and paste from given the particulars of a case.

So what did the lawyers claim as affirmative defenses on behalf of the high school? Just that the victim was at fault:

Now that was just dumb. Someone went through the laundry list of potential claims and said the rape victim was at fault for an assault?

And you know this was a mindless cut and paste because “assumption of risk” was also tossed in. But when New York created a comparative negligence statute (CPLR 1411), it wiped out the concept of assumption of risk as an absolute bar to recovery except for the limited cases of sporting events. (See Trupia v. Lake George Central School District). It wouldn’t apply here in any context.

(The actual facts of the incident are unknown to me beyond the Post story, and not for discussion here.)

Now I know what some folks are thinking – what’s the harm of just tossing crap in “just in case”? And the answer is threefold:

First, there’s no actual benefit because pleadings (such as an answer) can be amended, and such amendments shall be freely given. Even up until the time of trial. Even at trial. One of the stock motions at the close of a trial is that “I move to amend the pleadings to conform with the proof.” Sometimes a judge will ask if there is something in particular you have in mind. Sometimes not.

Second, counsel handed the press a headline to the detriment of the client. One thing that must always go through the mind of a lawyer for any public filing: How can the press take this statement and misconstrue it to embarrass my client? And gratuitously blaming someone that says she was raped sure as hell fits that bill.

Third, and possibly the worst. At trial, a savvy plaintiff’s counsel will read the defense and ask the school’s witnesses why they blamed the victim. There is only one answer that can possibly be given: The lawyer did it.

(I did this once when a patient was burned while undergoing surgery: How, dear doctor, was the patient to blame for being burned while she was under anesthesia?)

And when that happens, everything else that lawyer says is looked at sideways by the jury. If the lawyers will blame the victim, why believe anything they say?

This was like kicking the soccer ball into your own goal.


August 15th, 2010

Is Plaintiff’s Comparative Negligence a Bar to Summary Judgment Against Defendant?

Query: Plaintiff brings suit alleging that Defendant was negligent in causing an accident. Court agrees Defendant was negligent, but says that Plaintiff may also be comparatively negligent to some degree. Should the court grant partial summary judgment in Plaintiff’s favor and leave the issue of Plaintiff’s own negligence for the jury?

I pose this question because last week a split opened among New York’s appellate divisions on the subject, thereby setting the issue up for a battle in the Court of Appeals.

Last week in Roman v. A1 Limousine the Appellate Division (Second Department) held that even though the plaintiff might show that the defendant was negligent as a matter of law, he must also show “that he was free from comparative negligence.” In other words, even if the court can resolve some of the liability issues on the papers, the court won’t grant summary judgment if any other liability issue remains outstanding. Partial summary judgment doesn’t exist, even if some of the issues are slam-dunk.

The decision stands in sharp contrast to the First Department’s February decision in Tselebis v Ryder Truck Rental, Inc. In that case, the plaintiff in a two vehicle wreck had no recollection of what happened, but the defendant “testified that he entered the intersection against a red light and did not see plaintiff prior to the impact.” The court reasoned:

Plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question. A plaintiff’s culpable conduct no longer stands as a bar to recovery in an action for personal injury, injury to property or wrongful death. Under CPLR 1411, such conduct merely acts to diminish the plaintiff’s recovery in proportion to the culpable conduct of the defendants. This statute, enacted in 1975, substituted the notion of comparative fault for the common-law rule that barred a plaintiff from recovering anything if he or she was responsible to any degree for the injury.

While the First Department was quite clear in stating that “it is not plaintiff’s burden to establish defendants’ negligence as the sole proximate cause of his injuries in order to make out a prima facie case of negligence,” the Second Department was equally clear in rejecting the reasoning of the First. The Second wrote:

…contrary to the Appellate Division, First Department’s statements in Tselebis, CPLR 1411 was not relevant to the issues presented herein. CPLR 1411 codifies the rule that any culpable conduct attributable to the plaintiff, including his or her negligence or assumption of risk, does not bar the plaintiff’s recovery of damages, but shall diminish that recovery in proportion to the culpable conduct of the defendant. CPLR 1411 pertains to the damages ultimately recoverable by a plaintiff. It has no bearing, procedurally or substantively, upon a plaintiff’s burden of proof as the proponent of a motion for summary judgment on the issue of liability.

Why is this stuff important? First and foremost  is that, in New York, interest doesn’t start to run until there is a judgment (unlike many other states where interest runs from the date of the accident). With interest running, at a statutory rate of 9%, the defense benefits of stalling quickly exact a price for a tactic that shouldn’t exist at all.

Summary judgment also potentially removes the need for an expert (depending on the facts).

Most importantly, though, it sharply delineates the issues that need to be resolved by a jury. If the liability of one side can be established as a matter of law, why should a trial take place on those issues? Why would a court want to further drag out and complicate the litigation?

The Second Department is arguing, wrongly I think, that in order to have summary judgment on liability in must be complete and total on all liability issues. But why should partial summary judgment on some liability issues not be available to litigants? Isn’t it part of the function of the court to remove the extraneous, and have trial only on those issues where there is a factual dispute?

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.