Come One, Come All: Motions for Partial Summary Judgment as to Liability

On April 3, 2018, the New York Court of Appeals held, in Rodriguez v. City of New York, 31 N.Y.3d 312 (N.Y. 2018), that the plaintiff did not need to establish the absence of his own comparative negligence in order to obtain partial summary judgment on liability. The court concluded that a plaintiff does not bear a double burden of establishing a prima facia case of liability and the absence of his or her own comparative fault.

Prior to Rodriquez, the Court of Appeals had held that a plaintiff’s own comparative negligence raises an issue of material fact as to liability. See, Thoma v. Ronai, 82 N.Y.2d 736 (NY 1993). Therefore, the plaintiff was required to establish that he or she was free from any comparative negligence in order to obtain partial summary judgment as to liability. This rule produced numerous orders finding a triable issue of fact as to liability based upon a plaintiff’s comparative negligence.

In Thoma, a pedestrian was walking within the crosswalk when she was struck by a van. The pedestrian sued the operator of the van for negligence. The defendant did not dispute the fact that the pedestrian was struck while lawfully in the crosswalk. However, the defendants raised the issue of comparative negligence based on the plaintiff’s failure to look to her left while crossing the street. The Court of Appeals of New York found the plaintiff failed to satisfy her burden of proof for summary judgment. Additionally, the court found there was a material issue of fact as to the plaintiff’s comparative negligence.

In Rodriquez, an employee of the Department of Sanitation was injured when the operator of a sanitation truck skid into and struck the employee. The City maintained that the employee was comparatively negligent because he walked behind a sanitation truck moving in reverse during icy conditions. The Supreme Court of New York County denied the plaintiff’s and the defendant’s motions for summary judgment, finding issues of fact regarding foreseeability, causation and the plaintiff’s comparative negligence. The New York Court of Appeals held the plaintiff does not need to establish the absence of his or her own comparative negligence to obtain partial summary judgment on liability. The court stated that the prior holding in Thoma was mistaken.

The court cited the legislative intent of Article 14-A of the CPLR, which was designed to codify New York’s precedent that comparative negligence is no longer a complete defense to be pleaded and proven by the plaintiff but, rather, is only relevant to the mitigation of the plaintiff’s damages and should be pleaded and proven by the defendant. New York adopted a system of pure comparative negligence. In so doing, it directed courts to consider a plaintiff’s comparative fault only when considering the amount of damages a defendant owes to a plaintiff.

The court believed this rule would help the jury focus on the following issues:

1. Was the plaintiff negligent?;
2. Was the plaintiff’s negligence a substantial factor in causing his or her own injuries?; and
3. What was the percentage of fault of the defendant and what was the percentage of fault the plaintiff?

The recent holding in Rodriquez will ultimately result in more summary judgment motions being filed by plaintiffs. The courts will likely start granting more partial summary judgments as to liability. The Rodriquez decision will preclude defense counsel from attempting to convince a court that there is a material issue of fact as to liability with regard to the plaintiff’s own conduct. See, CPLR 1411. However, defense counsel will not be precluded from filing motions for summary judgment. There remain various grounds upon which defense counsel may be able to file victorious motions for summary judgment and adequately oppose a plaintiff’s motion for summary judgment.

*Dean is an associate in our New York City office. He can be reached at 212.376.6449 or dgaronin@mdwcg.com.

_{Defense Digest, Vol. 24, No. 3, September 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}