Article 16 of the CPLR imposes limitations on this state’s common law rule of joint and several liability. Since its passage nearly a quarter century ago, defendants are no longer necessarily liable for all damages to which they contributed by their negligence. Instead, they are only so liable where they are found to be more than 50 percent at fault. Defendants found 50 percent at fault or less remain liable for all economic damages, but only for their pro rata share of non-economic damages. In cases in which pain and suffering is the sole or primary item of damage, the impact of article 16 can be very significant.
Additionally, because article 16 permits the culpable conduct of non-parties to be considered in apportioning a defendant’s fault for the purposes of joint and several liability, defense counsel have an incentive to assign blame to as many other persons as possible. This blaming of the proverbial “empty chair defendant”—who is not represented by counsel at trial and must therefore be defended by plaintiff’s counsel—can be particularly problematic to plaintiffs in medical malpractice actions.
