In Rodriguez v. City of New York, 2018 WL 1595658 (N.Y. 2018), the Court of Appeals addressed an issue that had long divided the Appellate Departments: Does a personal injury plaintiff need to show freedom from comparative fault in order to obtain summary judgment on the issue of the defendant’s liability? The court held that a “plaintiff does not bear that burden.” Id. at *1. In doing so, it displaced what had previously been the majority approach to that question among the lower courts. This column discusses the state of the law before Rodriguez, the rationale for the decision, and how the rule it announced will function in practice.
State of the Law Before ‘Rodriguez’
Before Rodriguez, the Appellate Division departments had largely, but not exclusively, found that a plaintiff moving for summary judgment bore the prima facie burden of demonstrating freedom from comparative fault. See, e.g., Roman v. A1 Limousine, 76 A.D.3d 552 (2d Dept. 2010); Maniscalco v. New York City Tr. Auth., 95 A.D.3d 510, 514 (1st Dept. 2012); Piscitello v. Fortress Trucking, 118 A.D.3d 1441, 1442 (4th Dept. 2014); Rigney v. Ichabod Crane Cent. School Dist., 59 A.D.3d 842, 843 (3d Dept. 2009). Indeed, in Rodriguez itself, the First Department had followed that approach, in a 3-2 decision. See Rodriguez, 142 A.D.3d 778 (1st Dept. 2016). As a practical matter, this meant that summary judgment was an all-or-nothing proposition for a plaintiff. If he could show that the defendant was wholly responsible for the accident, he would be granted summary judgment, leaving only the valuation of his injuries for trial. But if he could not make such a showing, his motion would be denied in its entirety, and the trial would involve all issues, including the defendant’s liability.
The courts that had adopted this view considered it to be most sensible to resolve all issues of fault at once. See, e.g., Calcano v. Rodriguez, 91 A.D.3d 468, 470 (1st Dept. 2012). They also relied heavily upon the Court of Appeals’ prior decision in Thoma v. Ronai, 82 N.Y.2d 736 (1993), which they interpreted to have resolved the question. In Thoma, the plaintiff, a pedestrian, had been crossing the street, and was struck by a turning van. On appeal, the Appellate Division, First Department, held that her motion had properly been denied by the court below, concluding: “Although defendant did not dispute plaintiff’s averment that she was lawfully in the crosswalk when he struck her with his van as he turned left, summary judgment was properly denied since a failure to yield the right of way does not ipso facto settle the question of whether the other party was herself guilty of negligence.” Thoma, 189 A.D.2d 635 (1st Dept. 1993). Two justices dissented in separate opinions, both of which were primarily directed to the factual issue of whether plaintiff had actually been comparatively at fault. In a short decision, the Court of Appeals affirmed, finding that “she did not satisfy her burden of demonstrating the absence of any material issue of fact and the lower courts correctly denied summary judgment.” Thoma, 82 N.Y.2d 736.
The Thoma court had not directly been presented with the question of whether a comparatively negligent plaintiff could obtain summary judgment on the more limited issue of the defendant’s liability, as no litigant had raised it. See Maniscalco, 95 A.D.3d 510, 515 (1st Dept. 2012) (DeGrasse, J., dissenting) (taking judicial notice that the “relevant appellate argument in Thoma was confined to whether the record contained evidence sufficient to support a finding of contributory negligence.”). The decision also did not, on its face, explicitly set out any significant procedural rule. But Thoma was nonetheless viewed, in some quarters, as having spoken by implication to the broader question of how summary judgment motions should be adjudicated, because it had denied plaintiff’s motion based on her own comparative fault.
The contrary view, pre-Rodriguez, was that the liability of the defendant was a separate issue from the plaintiff’s comparative fault, and that the questions therefore should not be linked in motion practice. This approach, its proponents argued, was mandated by the enactment of Article 14-A of the CPLR. Before 1975, New York had followed the common law doctrine of contributory negligence—meaning that, if a plaintiff was even partially at fault for an accident, he could not recover from a defendant at all. Article 14-A replaced this rule with a comparative negligence regime, and made the plaintiff’s own fault a factor that diminished his damages, but did not bar his recovery from the defendant. As Justice Rolando Acosta wrote, dissenting from the First Department’s holding in Rodriguez, treating the issues of the defendant’s liability and the plaintiff’s comparative negligence separately in motion practice “gives full effect to the comparative negligence statute … which was designed not to bar recovery entirely, but to provide a partial defense and reduce a plaintiff’s damages where the culpable conduct of both parties proximately caused the injury.” Rodriguez, 142 A.D.3d at 798 (Acosta, J., dissenting).
The Court of Appeals’ Decision
The Court of Appeals, in a 4-3 decision authored by Judge Paul Feinman, reversed the First Department, and found that a comparatively negligent plaintiff could still be granted summary judgment on the issue of the defendant’s liability. Rodriguez, 2018 WL 1595658, *1 (2018).
As the majority wrote, the question of whether “a plaintiff must demonstrate the absence of his or her own comparative negligence to be entitled to partial summary judgment as to a defendant’s liability is a question of statutory construction of the CPLR.” Id. at *2. In particular, the court reasoned, the case involved the interplay of CPLR 3212 (the summary judgment standard) and CPLR 1411-1412 (the provisions put in place by Article 14-A).
CPLR 3212 requires a party moving for summary judgment to “show that there is no defense to the cause of action” to demonstrate an entitlement to relief. It further provides, in a similar vein, that a motion shall be granted if the “cause of action” is “established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” CPLR 1411 and 1412 dictate that a plaintiff’s culpable conduct, which includes comparative fault, “shall not bar recovery” and shall operate only “in diminution of damages.” CPLR 1411, CPLR 1412.
Because comparative fault is, under CPLR 1412, a damages issue, it does not bear on the standard established by CPLR 3212 for when summary judgment should be granted. CPLR 3212 requires the movant to show that there is no defense “to the cause of action.” Comparative fault is not, Judge Feinman wrote, a “defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence, and as CPLR 1411 plainly states, is not a bar to plaintiff’s recovery, but rather a diminishment of the amount of damages.” Id. at *4.
This conclusion, the court continued, was supported by the legislative history of Article 14-A. In enacting the statute, the legislature had recognized the injustice of contributory negligence, and had intended to do away with it entirely by making it “only relevant to the mitigation of plaintiff’s damages.” Id. at *4. The court rejected the expansive interpretation of Thoma some of the Appellate Division departments had adopted, finding that the case had only addressed the specific, primarily factual issues the parties had raised, and had not been intended to create a broadly applicable procedural rule. See id. at *5.
The court also discussed how its ruling would operate in practice. See id. at *6. A decision granting the plaintiff summary judgment on the issue of liability resolves the questions that would otherwise be submitted to the jury of (1) whether the defendant was negligent and (2) whether that negligence was a substantial factor in causing the plaintiff’s injuries. Thus, in a case where summary judgment has been granted as to the defendant’s liability, a trial court will instruct the jury that these two issues have “been previously determined as a matter of law.” The jury will then be directed to address the questions on the verdict sheet relating to comparative fault, and to engage in apportionment if necessary. In a potentially significant aside, the court further suggested that, in some instances, the issue of the defendant’s negligence could be resolved, even if proximate cause could not be. See id. at *6 (noting that a trial court will instruct the jury … that the issue of defendant’s negligence, and in some cases, the related proximate cause question” have been resolved).
‘Rodriguez’ Framework Moving Forward
Following Rodriguez, a plaintiff moving for summary judgment does not need to demonstrate freedom from fault in order to obtain summary judgment on the issues of the defendant’s negligence and proximate cause. When a plaintiff is granted partial summary judgment on the issue of liability, it has the effect of requiring a directed verdict on the points that have been determined. Rodriguez therefore requires little, if any, change in the existing jury instructions. It merely permits courts to resolve issues that would otherwise be on a verdict sheet, when appropriate, in motion practice, and thereby to remove them from the jury’s consideration. Rodriguez is likely to bring about more, and earlier, settlements of cases, by permitting courts to narrow the issues in dispute between the parties before trial. Obviously, a plaintiff may still, as before, move to dismiss a defendant’s affirmative defense of comparative fault, pursuant to CPLR 3212; but in doing so, he or she must, of course, make out a prima facie showing of entitlement to relief on that point.
An issue left open is whether trials should be unified or bifurcated when summary judgment as to the defendant’s liability has been granted. (In jurisdictions that already presumptively conduct unified trials, no change will be necessary.). While no particular result is necessarily mandated by Rodriguez—indeed, the issue is typically committed to a trial judge’s discretion—there are sound practical reasons to conduct unified trials when the defendant’s liability has already been resolved as a matter of law. A primary benefit of bifurcating a trial when liability has not yet been found is that it dispenses with the need for medical and economic testimony until it is clear the issues will actually be reached. If the defendant’s liability has been resolved in motion practice, it is a certainty that damages will need to be assessed, and little benefit to a bifurcated trial.
The ultimate effect of Rodriguez is to make the rules applicable to summary judgment consistent with those that have been followed at trial since the enactment of Article 14-A. A plaintiff’s comparative negligence does not, either on motion practice or at trial, prevent recognition of his right of recovery from the defendant.
Joshua Kelner, of Kelner & Kelner, represents Carlos Rodriguez, and argued the case in the Court of Appeals.