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.