Rodriguez v. City of New York, demonstrates once again that the First Department lacks unanimity as to whether a plaintiff can obtain summary judgment where questions of fact remain as to the plaintiff's comparative fault. As the majority writes: "we are revisiting a vexing issue regarding comparative fault: whether a plaintiff seeking summary judgment on the issue of liability must establish, as a matter of law, that he or she is free from comparative fault. This issue has spawned conflicting decisions between the judicial departments, as well as inconsistent decisions by different panels within this Department." Most of the Justices in the First Department are in accord with the Second Department's stance on this issue, i.e. that a plaintiff must make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability. The Fourth Department would allow partial summary judgment on the issue of a defendant's negligence even if an open question exists regarding the plaintiff's comparative fault (see Simoneit v Mark Cerrone, Inc., 122 AD3d 1246 [4th Dept 2014]).
The majority explains that the difference between awarding partial summary judgment and denying the plaintiff's motion in its entirety is that, if the motion were granted then the issue of contributory negligence would have to be considered during the damages portion of the case, whereas if the motion were denied then the issue must be considered during the liability phase of the trial.
The First Department's stance on this issue is traced back to Thoma v Ronai (189 AD2d 635 [1st Dept 1993], affd 82 NY2d 736 ), in which the plaintiff's motion was denied because she had failed to demonstrate that she was free from comparative negligence as a matter of law. The Court of Appeals affirmed the First Department's decision, finding that the "'plaintiff did not satisfy her burden of demonstrating the absence of any material issue of fact' on the question of her freedom from comparative negligence and therefore did not meet her burden on proof on the motion (82 NY2d at 737)."
As stated by the majority in Rodriguez: "The clear direction of Thoma is that a plaintiff may not be awarded partial summary judgment on the issue of a defendant's negligence if the defendant has raised an issue of fact as to the plaintiff's comparative negligence."
The rationale in support of the denial of summary judgment on this issue was best explained in Maniscalco v New York City Tra. Auth. (95 AD3d 510 [1st Dept 2012]), where the Court stated that "the causal role of each party's conduct should not be determined in isolation" (id. at 513). Quoting from Professor Alexander the majority observed:
"Conceptually, any amount of negligence by a defendant could trigger his or her liability, and CPLR 3212(e)allows for the entry of partial summary judgment as to any part of a cause of action. But few, if any, litigation efficiencies are achieved by the entry of partial summary judgment in this context because the defendant would still be entitled, at trial to present an all-out case on the plaintiff's culpable conduct. Furthermore, it is possible that a jury might find plaintiff's culpability to be the sole proximate cause of the accident if the issues of the defendant's liability and the plaintiff's comparative fault are seen, in the words of the dissent in Johnson v New York City Tra. Auth., 88 AD3d 321, 332 [1st Dept 2011] 'as an integrated whole.'" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B C1412) (emphasis added).
To hold otherwise, the majority colloquially stated, "defendant [would be] essentially entering the batter's box with two strikes already called."
The majority also observed that the Pattern Jury Instructions, PJI 2:36 et seq., provides that, in a comparative negligence case, the jury must be given instructions as to the defendant's liability and the plaintiff's liability at the same time (see 1A NY PJI3d 2:36 at 273 et seq.), which permits the jury to consider the actions of both parties as a whole in making their determination.
Addressing the dissenting opinion, the majority stated that the dissent had taken "the curious position" that summary judgment should nevertheless be granted as a matter of law where "plaintiff met his prima facie burden of establishing defendant's negligence as a proximate cause of the injury, and defendant failed to raise triable issues of fact with respect to its own negligence, but successfully raised triable issues of fact as to comparative negligence on the part of plaintiff." The majority noted, however, that such a determination would be contrary to the PJI, Professor Alexander's commentaries, and the First Department's holding in Maniscalco (95 AD3d 510) that "the causal role of each party's conduct should not be determined in isolation" (id. at 513). The majority further observed, as noted by Professor Alexander, the dissents position ignores the fact that "'a jury might find plaintiff's culpability to be the sole proximate cause of the accident' where the issues are tried as a whole. By finding, as a matter of law, that a defendant is at fault, the court denies the jury the opportunity to determine the issue of proximate cause."
The dissenters quoted from the concurring opinion in Capuano v Tishman Constr. Corp. (98 AD3d 848 [1st Dept 2012] [Acosta, J., concurring]), "I would hold that a plaintiff does not have th[e] burden [of disproving the affirmative defense of comparative negligence]. Once a prima facie showing [of defendant's negligence] is made, the burden shifts to the defendant to raise issues of fact, such as by submitting evidence in support of an affirmative defense" (id. at 852). Thus, "where a defendant fails to raise issues of fact as to his or her own negligence, but succeeds in raising issues of fact as to the plaintiff's comparative negligence, partial summary judgment on liability with respect to defendant's negligence is warranted, because the defendant will be liable to the extent his or her misconduct proximately caused the injury" which would allow for an argument during a subsequent trial on liability and damages that plaintiff was comparatively at fault. Therefore, the dissent would have granted plaintiff's motion finding defendant negligent as a matter of law and remanded the matter for a determination of liability attributable to each party.
The dissent disagreed with the majority's holding that by observing that comparative fault is an affirmative defense and a plaintiff should not be obligated to disprove that defense in order to obtain partial summary judgment on liability. According to the dissent, plaintiff's only burden is to show that defendants was negligent. The dissent further indicated that Thoma v Ronai did not require a different analysis because "the Court of Appeals said nothing about whether a plaintiff's prima facie burden includes disproving the affirmative defense of comparative fault." As such, the dissent indicated that the majority's reliance on Thoma was "unfounded."
The dissent further indicated that plaintiff could be granted summary judgment to the extent of finding defendant negligent as a matter of law, and allowing the jury to apportion fault. To that end, the dissent recommended that the matter be remanded "first for a trial on liability, during which the jury would consider the conduct of both parties and apportion fault accordingly. A trial on damages would follow, during which the jury would determine the total amount of damages (to be reduced in proportion to the apportionment of fault)." The jury would be instructed that "it cannot completely absolve the defendant of liability or find plaintiff 100% liable." The dissent qualified its recommendation in this regard by observing that it would only be available in a case where it has already been established, as a matter of law, that the plaintiff could not have been the sole proximate cause of his accident.