Lack of Precision in Pleading Results in Waiver of Affirmative Defense
In Jones, a medical malpractice action, the plaintiff alleged that the defendant doctor departed from accepted standards of medical practice in the care and treatment of the plaintiff, including causing a fracture to the plaintiff’s right distal tibia and fibula during a 2006 operation. During the jury charge conference, defense counsel requested a comparative negligence charge pursuant to Article 14-A, arguing for the first time that the plaintiff himself was also responsible for the injuries sustained.
In rendering its decision the trial court referenced CPLR 3018 which provides, in pertinent part:
(a) Affirmative defenses. A party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as arbitration and award, collateral estoppels, culpable conduct claimed in diminution of damages as set forth in article 14-A …
See Jones, 915 N.Y.S,2d at 481. In its analysis, the court examined Article 14 (joint and several contribution), Article 14-A (comparative negligence), and Article 16 (apportionment among joint tortfeasors) affirmative defenses, and elucidated the distinguishing features of each. In particular, the court highlighted the fact that an Article 16 defense seeks to apportion liability among defendants and non-parties, while an Article 14-A defense seeks to apportion liability between the plaintiff and the defendant.
In distinguishing between Article 16 and Article 14-A, the trial court ultimately concluded that defendant’s assertion of an affirmative defense pursuant to Article 16 did not provide plaintiff with appropriate notice that defendant was asserting a comparative negligence defense pursuant to CPLR Article 14-A. Id. at 484.
To support the position that the trial court instruct the jury on the issue of comparative negligence, defense counsel relied heavily upon the holding in Elkins v. Ferencz, 263 A.D.2d 372, 694 N.Y.S.2d 27 (1st Dept 1999). In Elkins, the First Department held it was reversible error for the trial court to not charge comparative negligence where defendant’s defense to a dental malpractice actions included plaintiff’s culpable conduct. Id. at 481.
In Jones, however, the trial court was not persuaded by Elkins. Rather, the court distinguished Elkins where the heart of the comparative negligence defense was plaintiff’s responsibility for causing her own periodontal disease, while in Jones, the crux of the defendant’s defense was that the defendant did not deviate from accepted standards of medical practice in the care of the plaintiff. Id. at 484. The Jones court further noted that Elkins did not clearly state whether comparative negligence was initially pled as an affirmative defense by the defendant, where in Jones, it was clear that it was not pled.
The Jones case serves as a very important reminder for counsel, insurers, and insureds to be cautious, vigilant, and precise in arguing and pleading the applicable affirmative defenses at the onset of a case; failure to do so may have a detrimental impact on the matter at a later date, up to and including at the time of trial.
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