Lynn K. Neuner and William T. Russell Jr. ()
We note that since our last column, the New York State Senate has confirmed the nomination of Rowan Wilson to fill the vacancy left on the Court of Appeals by the retirement of Judge Eugene F. Pigott. The Court of Appeals is now back at full strength, and we have a Court where all members have been appointed by Gov. Andrew Cuomo.
This month, we discuss a recent decision in which the court grappled with the issue of proportionate liability in situations where both the state and a private party are personal injury defendants. In Artibee v. Home Place, the Court of Appeals held that a non-state defendant is not entitled to apportion fault to the state where the private party and the state are alleged to be jointly liable for a plaintiff’s non-economic losses.
New York, like most states, has moved away from the potential unfairness of a pure contributory negligence/joint and several liability regime—in which a negligent plaintiff is completely barred from recovery and a non-negligent plaintiff may recover all damages from a single defendant—and adopted a system of modified comparative fault. The situation in New York, however, is complicated by the fact that as a matter of state constitutional law, the state can only be sued in the Court of Claims while private personal injury defendants are sued in Supreme Court. As a result, when the state and a private party are alleged joint tortfeasors in a personal injury case, they cannot be joined in the same action.
New York’s comparative fault rule is codified at CPLR 1601(1), which provides that in a personal injury action involving two or more jointly-liable tortfeasors or in a claim against the state, the liability for the non-economic loss of a defendant with 50 percent or less of the total liability 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. A claim is not subject to apportionment to a particular non-party tortfeasor, however, if the claimant can prove 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).” In that case, the culpability of the non-party tortfeasor is imposed upon the defendants. The parenthetical was apparently added at the request of the Office of the Attorney General and essentially means that the state is entitled to apportionment in a Court of Claims action even though the joint tortfeasor is not a party as long as the plaintiff could have obtained jurisdiction over the joint tortfeasor in any other court in New York state. There is no parallel express provision making clear that a non-state defendant is entitled to apportionment in Supreme Court when the state is an alleged joint tortfeasor.
That is exactly the situation that was presented in Artibee. Plaintiff alleges that she was driving on State Route 9N in Bolton when an overhanging branch from a tree on defendant Home Place’s property fell through her vehicle and hit her in the head. Plaintiff commenced a negligence action against defendant in Supreme Court and a parallel action against the state in the Court of Claims. Defendant filed a motion for leave to introduce evidence as to the state’s negligence and for a jury instruction directing apportionment of plaintiff’s injuries between defendant and the state. The trial court permitted evidence of the state’s negligence but refused to instruct the jury to apportion liability. The trial court then adjourned the trial to permit defendant to appeal. The Appellate Division, Third Department reversed the denial of the motion for a jury charge on apportionment and then granted plaintiff leave to appeal.
Judge Leslie Stein, joined by Chief Judge Janet DiFiore and Judges Eugene Fahey and Michael Garcia, wrote the majority opinion finding that defendant was not entitled to a jury instruction on apportionment. Both the majority and the dissenting opinion written by Judge Sheila Abdus-Salaam and joined by Judge Jenny Rivera, focused on the meaning of the phrase “jurisdiction” in CPLR 1601(1). The majority reasoned that apportionment is not available under the statute because plaintiff was unable to obtain jurisdiction over the state since the state cannot be sued in Supreme Court. It expressly found that the inability to sue the state in Supreme Court was a constitutional limitation on the subject matter jurisdiction of that court.
The majority also analyzed the legislative history of CPLR 1601 and noted that it arose out of a concern that liability insurance was becoming prohibitively expensive because joint and several liability subjected low-liability but deep-pocketed defendants to large judgments when their more culpable joint tortfeasors were insolvent or otherwise judgment proof. This rationale for apportionment was not implicated by the situation presented in Artibee because the state is not insolvent and a defendant who has been held liable in Supreme Court for negligent conduct of the state can always bring a claim for contribution in the Court of Claims.
The dissent, in finding that CPLR 16101(1) permits apportionment to the state in Supreme Court, took a more narrow view of the phrase “jurisdiction” and reasoned that it is limited to personal rather than subject matter jurisdiction. The dissent noted that the statute refers to a claimant’s “due diligence” in attempting to obtain jurisdiction and argued that this cannot possibly refer to subject matter jurisdiction because a plaintiff cannot do anything to affect the court’s subject matter jurisdiction over the claims at issue. The dissent also noted the unfairness of allowing the state to “try the empty chair” in arguing for the liability of an absent joint tortfeasor in the Court of Claims while denying a similar advantage to a non-state defendant in a Supreme Court action.
Nonetheless, that is the way these situations will play out unless the CPLR is amended or the restriction on Supreme Court jurisdiction over actions against the state is removed in the event that New Yorkers vote later this year to convene a constitutional convention in 2019.