Some practitioners assume that comparative negligence and similar affirmative defenses (i.e., those that charge the plaintiff with some culpability for its losses) are unavailable as a matter of law in connection with an intentional tort.

In fact, however, New York law on this important issue is unsettled and there is sound basis for the conclusion that such affirmative defenses are, assuming an appropriate factual basis, properly pleaded in response to any tort claim, including an intentional tort.

This article examines the principal arguments for and against the availability of such defenses and also considers some strategic reasons why defense counsel, even if permitted to plead such defenses, might ultimately choose not to pursue those defenses at trial.

Background

Prior to the enactment of New York’s comparative fault statute (CPLR �1411), contributory negligence by the plaintiff was a complete bar to recovery in a negligence case. 1 In contrast, contributory negligence was not permitted as a defense to an intentional tort claim. 2 The implicit justification for this rule appeared to be that it was bad policy for someone guilty of deliberate malfeasance to be completely insulated from the consequences of his wrongdoing merely because the victim had exercised poor judgment. In 1975, however, the Legislature amended the CPLR to eliminate the harsh consequences (for plaintiffs, that is) of the common-law doctrine of contributory negligence, replacing it with a system of comparative fault. CPLR �1411 now provides:

In any action to recover damages for personal injury, injury to property or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant bears to the culpable conduct which caused the damages.

Did the enactment of the comparative fault regime of CPLR �1411 eliminate the justification for barring consideration of a plaintiff’s culpability for its losses arising out of an intentional tort or does the old common-law rule barring the advancement of such affirmative defenses with respect to intentional tort claims still apply? Nearly 30 years after the enactment of CPLR �1411, this critical issue remains unsettled under New York law.

Two aspects of CPLR �1411 suggest that it was intended to apply to all torts, including intentional torts. First, there is the introductory phrase of CPLR �1411, which states that it applies to “ any action to recover damages for personal injury, injury to property or wrongful death, . . . ” (emphasis added). This language is broad and unambiguous, and so a court could well conclude that by the plain language of the statute, CPLR �1411 encompasses intentional torts.

In addition, the legislative history arguably buttresses the conclusion that CPLR �1411 was intended to sweep as broadly as its language suggests. The Judicial Conference Report urging adoption of CPLR �1411 provided that “this article is applicable not only to negligence actions, but to all actions brought to recover damages for personal injury, injury to property or wrongful death whatever the legal theory upon which the suit is based.3 That report further noted that “culpable conduct” as used in CPLR �1411 “may include, but is not necessarily limited to, negligence, breach of warranty, a violation of statute giving rise to civil liability, conduct giving rise to liability upon a theory of strict liability, and intentional misconduct.” 4

Notwithstanding the broad language of CPLR �1411 and its legislative history, however, there is a clear split of authority within what little precedent exists regarding whether affirmative defenses of comparative negligence and its kin may be asserted in response to intentional tort claims.

For Applying �1411 to Intentional Torts

New York’s Court of Appeals has not yet addressed CPLR �1411 in the context of an intentional tort. However, the Court’s observations in Arbegast v. Board Of Education Of South New Berlin Central School � in which the Court addressed whether an express assumption of risk remained a complete bar to a plaintiff’s recovery following the enactment of CPLR �1411 � suggest that the Court of Appeals might well allow comparative negligence-type defenses to be asserted in response to intentional tort claims. 5 The Court began its decision by noting that CPLR �1411 established a “system of comparative causation” and later expounded on why it chose that causation-oriented terminology:

Thus, what the statute requires comparison of is not negligence but conduct which, for whatever reason, the law deems blameworthy, in order to fix the relationship of each party’s conduct to the injury sustained and the damages to be paid by the one and received by the other as recompense for that injury. Comparative causation is, therefore, the more accurate description of the process, . . . 6

The Court also quoted with approval the Judicial Conference Report that stated that “culpable conduct may include . . . intentional misconduct.” 7

A number of courts have cited Arbegast as support for the proposition that under CPLR �1411, comparative causation affirmative defenses may be asserted against intentional torts. For example, in Haran v. New York Metropolitan Baseball Club Inc.,8 the defendants moved to dismiss affirmative defenses of comparative negligence and assumption of risk that had been asserted in connection with two intentional tort claims. The Haran court declined to strike the defenses, citing the language of CPLR �1411 and the fact that “the dicta of the Court of Appeals [in Arbegast] certainly indicates to this court that this is the direction we ought to be headed.” 9

Almost 15 years later, Judge McKenna issued a similar decision in Bank Brussels Lambert v. The Chase Manhattan Bank: “This Court concludes, albeit dubitante, that the New York Court of Appeals would find that CPLR 1411 is available to defendant in the present case as to plaintiffs’ claims of intentional tort . . . “ 10 Judge McKenna relied on the Arbegast and Haran decisions, the legislative history of CPLR �1411 and one of the leading practice commentaries. 11 The author is aware of no state or federal decisions handed down after Bank Brussels (other than decisions by Judge McKenna in the same case) that have addressed the availability of comparative causation defenses in connection with intentional torts as a matter of New York law.

Precedent Against Applying

Precedent Against Applying CPLR �1411 to Intentional Torts. There are, however, a number of pre- Bank Brussels decisions in which a court has held that comparative causation affirmative defenses cannot be asserted in connection with an intentional tort.

The most prominent of these is the First Department’s 1990 decision in City of New York v. Corwen. 12 A city official had pleaded guilty to racketeering in connection with accepting bribes from various landlords, and the city later sued many of those landlords and related companies for a variety of intentional torts, including fraud and inducement of breach of fiduciary duty. Various defendants raised the city’s comparative negligence (in failing to supervise its corrupt employee) as an affirmative defense or counterclaimed for negligence.

In affirming the dismissal of those affirmative defenses and the counterclaim (which was treated as equivalent to the comparative negligence defense), the First Department’s entire discussion of this issue was as follows:

In the past, contributory negligence clearly has not been regarded as a defense to intentional torts (see, General Crushed Stone Co. v. State of New York, 19 NY2d 737, 225 NE2d 893), and that appears to remain the rule with respect to comparative negligence (see, Anderson v. WHEC-TV, 92 AD2d 747, 461 NYS2d 607). 13

The Corwen court did not discuss the Court of Appeal’s decision in Arbegast nor the Haran decision.

As for the two decisions the Corwen court did cite: General Crushed Stone predated the adoption of CPLR �1411 (and in any event, did not discuss the rationale behind the old rule barring contributory negligence as an affirmative defense to an intentional tort); Anderson (which was decided after the adoption of CPLR �1411, but predated Arbegast) contained only a cursory discussion of the issue: “The affirmative defense asserting plaintiffs’ culpable conduct was properly dismissed. Plaintiffs’ causes of action against the media defendants are based on trespass, an intentional tort to which plaintiffs’ conduct is not a defense (61 NY Jur, Trespass, �28; Prosser, Torts [4th ed], �13, p 63).” 14

Both of the treatises cited in Anderson, however, were written years before the adoption of CPLR �1411. Moreover, Anderson was a Fourth Department case, and yet a further indication of the level of uncertainty in this area of the law is that both before and after Anderson, one can find Fourth Department decisions accepting that comparative causation defenses can indeed be asserted in connection with intentional tort claims. 15 In short, regardless of whether one believes that the holding in Corwen is correct, the authority cited therein fails to make a persuasive case for barring the assertion of comparative negligence defenses in response to intentional tort claims.

Policy Arguments

The courts have, at least overtly, tried merely to construe CPLR �1411, eschewing consideration of the naked policy arguments in favor of and against a rule allowing comparative causation affirmative defenses in connection with intentional torts. Proponents of each rule, however, can make arguments with some significant appeal.

The primary argument in favor of allowing such defenses is straightforward: A tortfeasor should be forced to pay in direct proportion to his responsibility for the plaintiff’s injuries, no more and no less.

This principle animated the enactment of CPLR �1411 and both the text of that statute and its legislative history suggest that CPLR �1411 applies with equal force to all tortfeasors, whether negligent or intentional. Moreover, whether a plaintiff is entitled to an extra “pound of flesh” from a tortfeasor because the tort was intentional should arguably be governed by the rules related to punitive damages rather than having an unintended and, perhaps, unwarranted, windfall conferred upon the plaintiff (through receipt of a compensatory damage award greater than the defendant’s actual responsibility for the plaintiff’s damages).

However, the principal policy argument against allowing comparative causation affirmative defenses to intentional torts is equally intuitive for many: Those who deliberately do wrong should not have their liability reduced by the fortuity that they preyed upon the reckless, the gullible or the negligent. For example, in connection with the intentional tort of fraud, is it not the case that many or even most plaintiffs were in some way negligent? Should their recoveries from fraudsters really be reduced as a result?

The relative strengths and weaknesses of these and other policy arguments also depend to some extent on the species of intentional tort at issue. For example, where the tort is for aiding and abetting fraud or aiding and abetting a breach of fiduciary duty, comparative causation defenses appear intrinsically more equitable because the plaintiff has already conceded, by his pleading, that the aider and abettor is not the primary wrongdoer. The comparative causation defenses arguably do no more than develop that concession into the logical question: What percentage of the plaintiff’s damages is really attributable to the conduct of this defendant? 16

Attempts to reconcile the conflicting bodies of precedent have been unconvincing. For example, in Bank Brussels, Judge McKenna suggested that Corwen might be distinguished on the basis that bribery is a particularly repugnant intentional tort indeed and a felony. 17 Taking this to its logical conclusion, defendants with respect to more “run of the mill” intentional torts would get the benefit of the comparative causation defenses of CPLR �1411, while “real criminals” would not. This approach, however, does not reflect � and seems unlikely to become � New York law. Some of the very cases holding that comparative causation defenses are available in connection with intentional torts have dealt with torts that are also crimes, such as assault and even manslaughter. 18

Moreover, almost every intentional tort has a criminal analog, and courts are unpracticed in (and likely ill-suited to) “grading” intentional torts so as to differentiate between “really bad” intentional torts (in connection with which comparative causation affirmative defenses would be unavailable) and only “mildly bad” intentional torts (as to which those defenses would be available). Finally but perhaps most fundamentally, this approach also suffers from the flaw that it has no basis in the language or legislative history of CPLR �1411.

The divergent bodies of precedent simply cannot be reconciled and, thus, sooner or later the Court of Appeals will have to resolve the applicability of CPLR �1411 to intentional torts. In the meantime, however, there are some practical approaches one can take to dealing with the uncertain state of the law.

Practice Pointers

Any affirmative defense that is not contained within the defendant’s answer may well be deemed waived. 19 Thus, if there is any chance at all that your client may wish to assert affirmative defenses of comparative negligence, assumption of risk or the like in connection with one or more intentional torts, and there is a factual basis for those defenses, those defenses should be pleaded.

The more difficult issue is whether those affirmative defenses are actually worth pursuing at trial, or whether the defendant is better off simply asking the jury to find � based on the very same facts that would have been advanced to support those affirmative defenses � that the plaintiff has failed to make its case.

For example, in a fraud case, the elements that the plaintiff must prove include that the plaintiff reasonably relied upon the alleged misrepresentation and that this reliance was the proximate cause of the plaintiff’s injuries. 20 If there is evidence that the plaintiff violated its own policies and procedures and/or prudent industry practices and that but for those errors, the fraud could never have been consummated, should defense counsel use this evidence:

(i) to undermine the fraud elements of reasonable reliance and proximate cause (as to which the plaintiff bears the burden of proof by clear and convincing evidence),

(ii) to support an affirmative defense of comparative negligence (as to which the defendant would bear the burden of proof by a preponderance of the evidence), or

(iii) both?

While some litigators would instinctively take option (iii) � on the “have my cake and eat it too” theory � many defense counsel are leery of jury instructions on affirmative defenses that might confuse a juror and leave him or her with the impression that it is the defendant’s burden to prove the unreasonableness of the plaintiff’s conduct or the absence of proximate cause. Another drawback of course is that some jurors might view the mere fact that the defendant is raising such affirmative defenses as a sign that the defendant is assuming the jury will find for the plaintiff on liability (notwithstanding defense counsel’s inevitable statements to the jury that this is a purely precautionary measure and that the jury should find no liability at all).

If defense counsel decides to forgo the comparative causation affirmative defenses and instead seeks to admit evidence of the plaintiff’s culpability in its losses solely as disproving elements of the plaintiff’s case (such as reasonable reliance and proximate cause), is defense counsel running the risk that less of this evidence will be admissible? At least one case confronted this issue and concluded that all the same evidence was admissible. In Kwiatkowski v. Bear, Stearns & Co., Inc.,21 the defendant attempted to withdraw its affirmative defense of comparative fault (asserted not only in response to plaintiff’s negligence claim, but also in response to plaintiff’s breach of fiduciary duty claim). The plaintiff objected and requested a jury instruction on comparative fault or, in the alternative, an instruction that the jury could not consider for any purpose whatsoever evidence that the plaintiff’s own misjudgments were the cause of the losses at issue. The court denied both of the plaintiff’s requests, unequivocally rejecting the plaintiff’s suggestion that his conduct could only be relevant in connection with an affirmative defense of comparative negligence:

Under these circumstances, the defendants’ arguments and corresponding evidence regarding plaintiff’s role in their relationship and in his transactions are offered, and are permitted by the Court, not for the purpose of supporting an affirmative defense but to refute the allegations raised in plaintiff’s complaint and denied in defendants’ answer. In other words, the same matters that could have served to establish comparative fault could be allowed for the jury to consider as tending to negate an element of plaintiff’s prima facie case. To the extent causation is an essential element of both the breach of fiduciary duty and the negligence claims, arguments and evidence that tend to refute or disprove plaintiff’s contentions regarding the proximate cause of his injury, including plaintiff’s own decisions and actions, would certainly be appropriate relevant matters for the jury to weigh. Defendants should not be compelled to plead or to remain with an affirmative defense, and thus bear a burden of proof at trial that they may feel they cannot sustain, in order to raise questions of fact as to a vital element of plaintiff’s prima facie case such as causation. 22

As previously noted, there are few cases whether comparative causation defenses can be asserted in connection with intentional tort claims, and Kwiatkowski is the only case the author has found addressing whether evidence that might have been offered in support of such a defense is admissible even without such a defense because that evidence undermines elements of the plaintiff’s intentional tort claim; the logic of the ruling in Kwiatkowski is, however, quite compelling.

Conclusion

In conclusion, faced with a complaint in which one’s client is alleged to have committed an intentional tort, defense counsel should think carefully about whether there is a basis for pleading comparative causation affirmative defenses pursuant to CPLR �1411. If such defenses are pleaded, survive the likely motion to dismiss by the plaintiff (given the present, uncertain state of the law) and the case goes to trial, defense counsel should think equally carefully about whether the defendant is best served by having those affirmative defenses put to the jury, or instead by withdrawing them and using the evidence that would have supported those defenses solely to undermine elements of plaintiff’s intentional tort claim.

Andrew T. Gardner is a litigation partner at Fried, Frank, Harris, Shriver & Jacobson. Marc Battle, an associate, and Diana Adams-Ciardullo, a summer associate, assisted in the preparation of this article.

Endnotes:

1. E.g., Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115 (1976).

2. E.g., Hartford Acc. & Ind. Co. v. Walston & Co., 21 N.Y.2d 219, 287 N.Y.S.2d 58 (1967).

3. Thirteenth Ann. Rep. Of the Jud. Conference on the CPLR (1975) at 1484 (emphasis added; citations omitted). Note, however, that the preceding part of the quoted sentence was addressed to whether breach of warranty and strict products liability causes of action were covered. Thus, one might argue that it was those types of claims – and not intentional torts – that were within the contemplation of the authors of the Judicial Conference Report when they wrote that CPLR �1411 was intended to apply to “all actions . . . whatever the legal theory upon which the suit is based.”

4. Id. at 1486. The sentence quoted focused upon “[t]he defendant’s culpable conduct” and not that of the plaintiff. But a single term must be given a consistent construction throughout its use within a statute unless the express language of the statute requires a different conclusion, e.g., Rodriguez v. Perales, 86 N.Y.2d 361, 633 N.Y.S.2d 252 (1995), and there is nothing in CPLR � 1411 to suggest that “culpable conduct” means one thing when applied to defendants but another when applied to plaintiffs.

5. Arbegast v. Bd. Of Ed. Of South New Berlin Central Sch., 65 N.Y.2d 161, 490 N.Y.S.2d 751 (1985). The Court held that an express assumption of risk remains a complete bar to recovery notwithstanding the enactment of CPLR � 1411, but that an implied assumption of risk is an affirmative defense subject to CPLR � 1411.

6. Arbegast, 65 N.Y.2d at 168, 490 N.Y.S.2d at 756 (emphasis added).

7. Id. at 167, 490 N.Y.S.2d at 756.

8. 131 Misc. 2d 392, 500 N.Y.S.2d 485 (Sup. Ct. Nassau Cty. 1986).

9. Id. at 393, 500 N.Y.S.2d at 487. In so holding, the court rejected an earlier decision by the Fourth Department, Anderson v. WHEC-TV, 92 A.D.2d 747, 461 N.Y.S.2d 998 (4th Dept. 1983), noting that “[m]ore recent developments in the law would seem to overrule this determination.” Id. at 392, 500 N.Y.S.2d at 486.

10. Bank Brussels Lambert v. The Chase Manhattan Bank, 1999 WL 710778, at *1 (S.D.N.Y. Sept. 10, 1999).

11. That commentary was 4 Jack B. Weinstein, et al., New York Civil Practice: CPLR � 1411.04 (1999). Interestingly, Judge Weinstein’s treatise specifically states that CPLR � 1411 applies to intentional torts, which is inconsistent with Judge Weinstein’s comment within his decision in Blue Cross and Blue Shield of New Jersey, Inc. v. Phillip Morris, Inc., 36 F. Supp. 2d 560, 577-76 (E.D.N.Y. 1999). The Blue Cross decision pre-dated, and was distinguished, in Judge McKenna’s decision in Bank Brussels.

12. 164 A.D.2d 212, 565 N.Y.S.2d 457 (1st Dept. 1990).

13. Id. at 218, 565 N.Y.S.2d at 460.

14. Anderson v. WHEC-TV, 92 A.D.2d. 747, 747, 461 N.Y.S.2d 607, 608 (4th Dept. 1983).

15. See, e.g., Coty v. Steigerwald, 262 A.D.2d 946, 692 N.Y.S.2d 556 (4th Dept. 1999) (post-Anderson); Comeau v. Lucas, 90 A.D.2d 674, 455 N.Y.S.2d 871 (4th Dept. 1982) (pre-Anderson).

16. Of course, even if comparative causation defenses are not permitted, a defendant on an aiding and abetting claim can argue that as a simple matter of causation, he is responsible, at most, for only a fraction of the plaintiff’s damages.

17. Bank Brussels Lambert at *2.

18. E.g., Jordan v. Britton, 128 A.D.2d 315, 515 N.Y.S.2d 678 (4th Dept.) (manslaughter); Comeau v. Lucas, 90 A.D.2d 674, 455 N.Y.S.2d 871 (4th Dept. 1982) (assault).

19. See Fed. R. Civ. P. 8(c); CPLR � 3018.

20. E.g., Kaye v. Grossman, 202 F.3d 611 (2nd Cir. 2000).

21. 2000 WL 640625 (S.D.N.Y. May 18, 2000).

22. Id. at *2 (citations omitted; emphasis added). The defendants’ gambit appears to have worked, at least with respect to the intentional tort claim; the jury returned a defense verdict on the claim for breach of fiduciary duty. And while the jury came in for the plaintiff on the negligence claim, the Second Circuit later reversed that judgment, holding that Bear Stearns had no duty to give unsolicited advice to the very sophisticated plaintiff. Kwiatkowski v. Bear, Stearns & Co., 306 F.3d 1293 (2d Cir. 2002).