Court of Appeals: Showing of absence of comparative negligence not required in moving for summary judgment.

By Edward J O’Gorman and Marc H. Pillinger.

On April 3, 2018, New York’s highest state court, in Rodriguez  v. City of New York, 2018 NY Slip Op. 02287, held, in a 4 to 3 decision, plaintiff need not “demonstrate the absence of comparative negligence to be entitled to partial summary judgment as to a defendant’s liability.”

Plaintiff was injured outfitting sanitation trucks with tire chains and plows at a city-owned garage in preparation for snow and ice removal.  As a sanitation truck was backing into a garage bay, a guide’s positioning on the driver’s side of the truck violated DOS safety practices.  As the truck backed into the garage bay, plaintiff stood in front of a parked car and a “rack of tires” outside of the bay.  The truck skidded, crashing into the parked car, causing the car to “pin” plaintiff against the rack of tires.

Holding plaintiff is not required to make a showing of absence of comparative negligence when moving for summary judgment on liability, the majority referred to CPLR 1411.

In any action to recover damages for personal injury, injury to property or wrongful death, the culpable conduct attributable to the claimant or the decedent,  including contributory negligence or assumption of risk shall not bar recovery.  But the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.

The majority cited the example of a statutory violation preventing plaintiff from prevailing on summary judgment, where plaintiff failed to establish his/her absence of comparative negligence.  This would allow a jury to then decide whether defendant was negligent.  This creates a possibility of a jury finding no negligence based upon plaintiff’s actions or omissions, despite a statutory violation and violates Section 1411’s language of “contributory negligence or assumption of the risk shall not bar recovery.”

The majority disagreed “bifurcation of the issues of defendant’s liability from plaintiff’s liability runs counter to the Pattern Jury Instructions.”  Rather, upon establishing a defendant’s liability, a jury must still determine whether plaintiff “was negligent and whether such negligence was a substantial factor in causing plaintiff’s injuries.”

The minority cited the precedent, present in all four judicial departments, that a “plaintiff must demonstrate the absence of issues of fact concerning both defendant’s negligence and its own comparative fault in order to obtain summary judgment.”

The dissent noted previous legislative attempts to amend the comparative fault statute to place on a defendant opposing summary judgment, “the burden of interposing proof of culpable conduct.”  It was noted such legislative reform would be unnecessary if “plaintiffs were entitled to summary judgment despite existence of issues of fact concerning comparative fault,” as held by the majority.

Plaintiffs can prevail on summary judgment despite issues of fact existing as to comparative negligence.  As you are aware, interest at 9% starts to run upon the granting of summary judgment.  If you have any questions please do not hesitate to contact our office.