Plaintiff Seeking Summary Judgment on Liability Need Not Establish Lack of Comparative Fault
Does a plaintiff in a negligence lawsuit seeking summary judgment on the issue of the defendant’s liability have the burden to prove that he is free from comparative fault? The New York Court of Appeals recently addressed that question, which has, at times, vexed various courts in the state, holding that the answer is “no.” (Rodriguez v. City of New York, ___N.Y.3d___, 2018 N.Y. Slip. Op. 02287 (April 3, 2018).
In Rodriguez, the plaintiff was injured while he and two coworkers were outfitting sanitation trucks with tire chains and snow plows. The plaintiff was between the front of a parked sedan and a rack of tires outside of a garage bay when a driver began backing a sanitation truck into the garage. The truck skidded and crashed into the parked sedan, causing the sedan to strike the plaintiff, who sustained significant injuries. The plaintiff sued the city for negligence and later moved for partial summary judgment on the issue of the city’s liability. The city asserted comparative fault as an affirmative defense and cross-moved for summary judgment, arguing among other things that the plaintiff was negligent in being behind the truck while it was moving in reverse.
A party moving for summary judgment must “show that there is no defense to the cause of action” (CPLR 3212(b)-(c)). A plaintiff’s comparative fault, however, “shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished” accordingly (CPLR 1411). Comparative fault is a form of culpable conduct that must be pleaded and proved as an affirmative defense (CPLR 1412).
In Rodriguez, the trial court denied the plaintiff’s motion and the city’s cross-motion for summary judgment, holding that there were triable issues of fact regarding foreseeability, causation, and the plaintiff’s comparative negligence. On appeal, the Appellate Division, First Department, affirmed over a two-judge dissent, but granted the plaintiff leave to appeal to the Court of Appeals.
In a 4-3 split decision, the court reversed, holding that the plaintiff should have been granted partial summary judgment on the issue of the city’s liability. The court reasoned that placing the burden on the plaintiff to show an absence of comparative fault was inconsistent with the above-referenced statutes and would place an improper “double burden” on the plaintiff to prove not only each element of his negligence cause of action, but also his lack of culpable conduct, which is only a mitigation of damages defense.
As noted in the dissenting opinion, the court’s decision appears to be a departure from settled New York law that a plaintiff must establish both the defendant’s negligence and the plaintiff’s freedom from comparative fault in order to obtain summary judgment. Going forward, parties and their attorneys must be aware that a plaintiff need not show the absence of any triable issues of fact as to his or her own comparative fault in order to obtain partial summary judgment as to liability, which, generally, is when pre-judgement interest begins to accrue.
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