In a personal injury action in New York, if a non-party is at least partly responsible for the plaintiff’s injury, CPLR Article 16 may limit the defendants’ share of the damages to the extent of the non-party’s percentage of fault. Since this tricky provision can make a big difference in a close case, this article offers a defense-oriented perspective on Article 16 in premises liability matters.
The four statutes within Article 16 (CPLR 1600-1603) operate together to determine whether the defendants will be obligated to pay the plaintiff for the non-party’s share of the damages as well as their own, or alternatively, whether the plaintiff will have to accept less money from the defendants to the extent of the non-party’s percentage of fault.1
First, a few caveats: The Article 16 defense only applies to “non economic” damages, essentially pain and suffering, and will therefore not insulate a defendant from liability for “economic” damages, such as lost wages or medical expenses. It is probably good practice to plead Article 16 in the defendant’s answer as an affirmative defense to avoid claims of unfair surprise to the plaintiff at the time of trial, even though the Second Department has held that this is unnecessary.2
Next, the defendant must be found by the trier of fact to have been 50 percent or less at fault,3 and the defense does not apply if the plaintiff was unable to establish “personal jurisdiction” over the culpable non-party,4 usually because the non-party was never identified or located, thus preventing the plaintiff from serving them with a copy of the summons and complaint.
Within those parameters, however, Article 16 offers a potentially significant defense and accordingly, a close understanding of its terms is essential for counsel to predict what will likely happen at the time of trial (and post-trial) in an action involving a non-party who may bear some percentage of fault.
This article will explain some of the scenarios under which the statute may or may not apply. Ultimately, the defendant will seek to persuade a judge, at the charge conference before trial, that the non-party should be listed on the verdict sheet along with the defendant. The jury would then be permitted, although not required, to assign some percentage of fault to the non-party. If the defense applies, the moving defendant will not be held responsible for the non-party’s percentage of the plaintiff’s total “non-economic” damages as determined by the jury (again, provided the defendant is also found to be 50 percent or less at fault). The plaintiff bears the burden of proof to show that the defense does not apply.5
The defendant thereby seeks to avoid the harsh effects of “joint and several” liability for all of the plaintiff’s damages, even if the defendant is only 1 percent at fault. The common-law “joint and several” rule will apply if Article 16 does not.6
Article 16 is therefore sometimes referred to as the “empty chair” defense. If it applies, then during summation defense counsel can blame the absent non-party (the “empty chair”) and argue that the non-party was primarily or solely responsible for the loss. Defense counsel will be precluded from making that argument if the trial judge finds in plaintiff’s favor and rules that Article 16 does not apply.
Statute and Case Law
Enacted in 1986, New York’s Legislature intended Article 16 to benefit “low-fault,” “deep-pocket” defendants, and provide them some protection from the sometimes harsh effects of the joint and several liability rule.7 (The Legislature carved out several categories of cases from the scope of Article 16, which fall outside the scope of this article).8
Despite the Legislature’s stated intent, the potential exposure for an entire judgment—so long as the jury finds the defendant at least 1 percent liable—prompts many low-fault, deep-pocket defendants to settle rather than proceed to trial.
Defense counsel, therefore, must know whether Article 16 may apply, ideally at the inception of the case, and guide pretrial discovery and investigation accordingly.
Since there are relatively few cases that interpret Article 16, likely because only a small percentage of cases proceed to trial, defense counsel is afforded little guidance as to the specific circumstances when the defense might apply in a premises liability case. At first glance, the statute appears to carve out a major exception for premises liability cases. CPLR 1602(2)(iv) provides that the defense shall not “be construed to…alter, limit…or restrict” a defendant’s liability which “aris[es] by reason of a non-delegable duty or by reason of the doctrine of respondeat superior.”
The plaintiff in a premises case can be expected to cite this provision at the beginning of the charge conference. It appears to remove the vast majority of premises liability cases from the protection of Article 16, because it is well settled that premises “owners” generally owe a “non-delegable” duty to maintain their property in a reasonably safe condition.9 Removing all such cases from the scope of Article 16 would pose an exception so large, it would almost swallow the rule.
As explained by the Court of Appeals, however, CPLR 1602(2)(iv) is not an “exception” and this subsection actually means that the Article 16 defense can be used by a premises owner, so long as the culpable non-party is not an agent or employee of the defendant. ??In the seminal case of Rangolan v. County of Nassau, 96 N.Y.2d 42, 46 (2001), the court explained that CPLR 1602(2)(iv) is a “savings clause” meant to “preserve principles of vicarious liability” and ??”ensure that a defendant is liable to the same extent as its delegate or employee.”
Agent, Delegate, Employee
Depending on the facts of the case, at this point the issue of whether Article 16 applies will turn on the status of the non-party tortfeasor and whether he, she or it was arguably an “agent,” “delegate” or “employee” of the defendant as determined by agency law. Defendants are responsible for “independent contractors,” at least in cases where the defendant owes a “non delegable duty” to maintain the premises in a reasonably safe condition,10 which includes the vast majority of premises liability matters.
Thus, a defendant premises owner may take advantage of Article 16 with regard to non-parties over which it exercised no control under agency law.11 The defense is therefore available in a negligent security case against the assailant (again, provided that the plaintiff was able to find that party and assert jurisdiction over them).12 The defense is potent in this context because the assailant would be primarily culpable. Defense counsel can point to the assailant’s “empty chair” during summation.
Similarly, the defense can apply in the Dram Shop13 context, where the defendant made an “illegal sale” of alcohol to a non-party who negligently or intentionally injured the plaintiff by reason of intoxication caused by the illegal sale. For example, in Spatz v. Riverdale Greentree Restaurant, Inc., 256 A.D.2d 207 (1st Dept. 1998), the plaintiff was assaulted by an intoxicated bar patron. He alleged that the defendant bar had violated the Dram Shop Act, and negligently and recklessly permitted the assault to occur.
The jury attributed 45 percent liability to Stanton, 10 percent to the bar defendants, and 45 percent to plaintiff. Although the Appellate Division remanded for a new trial, it explained that Article 16 apportionment was appropriate unless the plaintiff could demonstrate the exception for “reckless” conduct under CPLR 1602(7), “because a jury verdict for plaintiff on this theory would have held the bar defendants fully liable for any judgment” if CPLR 1601 did not apply (Spatz, 256 A.D.2d at 208).
The result is less clear when the evidence is disputed as to whether a tenant owes a “non-delegable” duty, whether the accident occurred within the premises’ space designated for guests, or if it is unclear whether the non-party was an agent or delegate of the defendant premises.
In a notable case frequently relied on by plaintiffs, Thomassen v. J & K Diner, Inc., 152 A.D.2d 421 (2d Dept. 1989), the defendant building owner retained an independent contractor to construct an exterior staircase, down which the plaintiff fell. The Appellate Division ruled that Article 16 did not apply because the building owner had a “non-delegable” duty and could not apportion fault against the contractor it hired to build the staircase.
If, however, the evidence shows that the plaintiff may have been injured outside the space designated for patrons or customers, the defendant can argue that it does not owe a “non-delegable” duty for that area. In Parsons v. City of New York, 195 A.D.2d 282, 284 (1st Dept. 1993), the plaintiff tripped over a sump well cover and claimed that a contractor had negligently installed it. The Appellate Division distinguished Thomassen, in which “the defendant property owners operated a restaurant and invited the general public into the premises where the negligent work, which caused the plaintiff’s injuries, was performed,” because “here the plaintiff’s injury occurred in an area of the building closed to the general public.”
Thus, in an appropriate case, defense counsel can argue that if plaintiff’s injury occurred in an area “closed to the general public,” that they are not vicariously liable for the negligent acts of the contractor; therefore, Article 16 apportionment should be permitted as against the contractor. Such scenarios can occur in the premises context whenever a patron wanders into an “employees only” area and is injured as the result of a third party’s negligence.
Using the foregoing principles, in a close case, adept use of this statute can make a significant difference between a favorable or unfavorable outcome whether by settlement, verdict, post-trial motion, or appeal.
Nicholas Hurzeler is a partner in the Manhattan office of Lewis Brisbois Bisgaard & Smith.
1. CPLR 1601 provides that if a personal injury plaintiff obtains a favorable verdict or decision against “two or more tortfeasors jointly liable…and the liability of a defendant is found to be fifty percent or less of the total liability assigned to all persons liable, the liability of such defendant to the claimant for non-economic loss shall not exceed that defendant’s equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss; provided, however that the culpable conduct of any person not a party to the action shall not be considered in determining any equitable share herein if the claimant proves that with due diligence he or she was unable to obtain jurisdiction over such person in said action (or in a claim against the state, in a court of this state); and further provided that the culpable conduct of any person shall not be considered in determining any equitable share herein to the extent that action against such person is barred because the claimant has not sustained a ‘grave injury’ as defined in section eleven of the workers’ compensation law.”
2. In Marsala v. Weinraub, 208 A.D.2d 689 (2d Dept. 1994), the Second Department held that a defendant did not have to plead article 16 as an affirmative defense in a case involving multiple defendants.
3. “Under CPLR article 16, a joint tortfeasor whose culpability is 50% or less is not jointly liable for all of plaintiff’s noneconomic damages, but severally liable for its proportionate share (CPLR 1601 ).” Sommer v. Fed. Signal Corp., 79 N.Y.2d 540, 554 (1992).
4. See CPLR 1601.
5. See CPLR 1603.
6. Sommer v. Fed. Signal Corp., supra, 79 N.Y.2d 540, 554 (1992).
7. See, Rangolan v. County of Nassau, 96 N.Y.2d 42, 46 (2001), explaining that “The Governor’s Advisory Commission on Liability Insurance, chaired by former Court of Appeals Judge Hugh R. Jones, had recommended that the rule of joint and several liability be amended “to assure that no defendant who is assigned a minor degree of fault can be forced to pay an amount grossly out of proportion to that assignment,” citing Insuring Our Future, Report of Governor’s Advisory Commission on Liability Insurance, at 132 [April 7, 1986]).
8. For example, motor vehicle negligence actions are not subject to Article 16 as provided in CPLR 1602(6); it does not apply to certain Workers’ Compensation related claims under CPLR 1602(4); or contractual indemnity claims (CPLR 1602(1)); and does not apply where the defendant acted intentionally or recklessly, see CPLR 1602(5) and (7); or to environmental and certain products liability claims, see CPLR 1602(9) and (10).
9. See, e.g., Basso v. Miller, 40 N.Y.2d 233 (1976); Backiel v. Citibank, 299 A.D.2d 504 (2d Dept. 2002).
10. See Rangolan, supra, 96 N.Y.2d at 47.
11. Rangolan v. County of Nassau, supra, 96 N.Y.2d at 47 (“nothing in CPLR 1602(2)(iv) precludes a municipality, landowner or employer from seeking apportionment between itself and other tortfeasors ‘for whose liability [it] is not answerable’”) (citation omitted).
12. Chianese v. Meier, 774 N.E.2d 722 (2002).
13. See N.Y. General Obligations Law §11-101; Alcoholic Beverage Control Law §65.