Chapter 3 Culpable Conduct Comparative Fault Issues as Applicable to a Products Liability Case

• Jurisdiction: New York

CHAPTER THREE CULPABLE CONDUCT/ COMPARATIVE FAULT ISSUES AS APPLICABLE TO A PRODUCTS LIABILITY CASE Anthony H. Gair, Esq.
Rhonda E. Kay, Esq.

I. INTRODUCTION

What is culpable conduct? In the broadest sense, it is something more than a mere mistake ⁶⁹³ and something less than an intentional, wrongful, criminal act that is highly dangerous to the public ⁶⁹⁴ By definition, the term “culpable” is synonymous with “blamable.” ⁶⁹⁵ When one hears the words “culpable conduct,” there is an immediate tendency to equate them with the party designated as the defendant. But what about a plaintiff’s culpable conduct? More particularly, what is the effect of such conduct on actions brought to recover damages for injuries sustained as a result of a defective product? The first part of this chapter contains an overview of the various culpable conduct/comparative fault issues as they pertain to a typical products liability case. The second half presents a more practical application of these concepts, setting forth suggestions and examples for both plaintiff’s and defendant’s counsel

II. CULPABLE CONDUCT AND COMPARATIVE NEGLIGENCE

Prior to the enactment of New York’s comparative negligence statutes in 1975 ⁶⁹⁶ culpable conduct (commonly referred to as “contributory negligence” and “assumption of the risk”) was a complete defense, barring any and all recovery by the injured party ⁶⁹⁷ However, recognizing that the traditional contributory negligence doctrine had, by its rigid application, become an obstacle to the dispensing of substantial justice, ⁶⁹⁸ the legislature adopted CPLR article 14-A. This statute, also known as the “pure comparative negligence” standard, ⁶⁹⁹ became effective on September 1, 1975. It provides as follows:

• § 1411. Damages recoverable when contributory negligence or assumption of risk is established.
• 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 or decedent bears to the culpable conduct which caused the damages.
• § 1412. Burden of pleading, burden of proof.
• Culpable conduct claimed in diminution of damages, in accordance with section fourteen hundred eleven, shall be an affirmative defense to be pleaded and proved by the party asserting the defense.
• § 1413. Applicability.
• This article shall apply to all causes of action accruing on or after September first, nineteen hundred seventy-five.

By its terms, CPLR 1411 is not limited to negligence actions. ⁷⁰⁰ The legislative history supporting the proposed comparative negligence bill expressly stated the intention to formulate a standard that would extend to breach-of-warranty and strict liability causes of action. ⁷⁰¹

The most noteworthy effect of this statute on products liability actions is that it abolishes both contributory negligence and assumption of risk as absolute bars to the recovery of damages in personal injury, property damage or wrongful death actions. ⁷⁰² Consequently, the culpable conduct of the plaintiff serves only to proportionately diminish, as opposed to completely preclude, the amount of damages recoverable. ⁷⁰³

The phrase used in CPLR 1411—that the amount of damages “shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages”—very simply means that the injured party’s damages will be reduced by the percentage of culpable conduct attributed to him or her. The profound result is that an injured person is entitled to recover, even if his or her culpable conduct was greater than that of the defendant tortfeasor. Thus, a plaintiff who is found 99% at fault will nevertheless be entitled to an award of 1% of the total sustainable damages. (Simple mathematics reveals the undisputed fact that 1% of a $1-million verdict compensates the party with the lion’s share of the blame to the tune of $10,000.) Of course, only culpable conduct that was a substantial factor in causing the harm for which recovery is sought should be considered in determining the percentage by which the total damages are to be reduced. ⁷⁰⁴

Regarding utilization of the phrase “culpable conduct,” the Report of the Judicial Conference to the Legislature cited Velez v. Craine & Clark Lumber Corp. ⁷⁰⁵ and acknowledged that the selection of this terminology instead of “negligent conduct” was a deliberate effort to encompass not only negligence but also other breaches of legal duties. ⁷⁰⁶ The legislators also made clear that the specific examples of culpable conduct referred to in the statute and the Report were not exclusive and, therefore, would not prevent “[j]udicial development of the concept of ‘culpable conduct’ consistent with the goals of this article.” ⁷⁰⁷

It is against this background that each of the typical, garden-variety culpable conduct defenses currently available to a products liability defendant will be reviewed: assumption of the risk, failure to discover the defect and perceive its danger, failure to guard against a known defective condition, failure to heed warnings and instructions, misuse, failure to utilize available safety devices and post-manufacture alterations/modifications.

A. Assumption of the Risk

Volenti non fit injuria: “[I]f one, knowing and comprehending the danger, voluntarily exposes himself to it, though not negligent in so doing, he is deemed to have assumed the risk and is precluded from a recovery for an injury resulting therefrom.” ⁷⁰⁸

There are two distinct doctrines of assumption of risk. ⁷⁰⁹ The first falls within the CPLR article 14-A concept of culpable conduct attributable to the plaintiff. ⁷¹⁰ Like comparative negligence, it does not completely bar recovery but, rather, proportionately reduces it. ⁷¹¹ The second category, known as “primary” assumption of risk, is not a measure of the plaintiff’s comparative fault, but of the defendant’s duty of care. ⁷¹² Primary assumption of risk, which may be express or implied, either eliminates the defendant’s duty of care to the plaintiff or simply reduces it. ⁷¹³ Obviously, if the defendant’s duty is eliminated, it is an absolute bar to recovery, notwithstanding CPLR article 14-A. ⁷¹⁴ The doctrine of primary assumption of risk is primarily utilized by defendants with respect to claims of injury arising out of a plaintiff’s participation in a professional or amateur sporting or entertainment event or activity. ⁷¹⁵

Under the doctrine of primary assumption of the risk, participants in a sporting activity “ ‘may be held to have consented, by their participation, to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of the participation,’ ” and may be held to have assumed those risks that are “inherent” or “ordinary and necessary” in the sport. ⁷¹⁶ The fact that a particular product used by a participant in a sporting activity may prove to be defective is not an occurrence that is typically known, apparent, or reasonably foreseeable from the standpoint of the participant; nor is it ordinary, necessary or inherent in the activity itself. ⁷¹⁷ To the contrary, a defective or unreasonably dangerous condition of the product is almost always a “concealed” condition, representing an “unreasonably increased” risk and hence one that would remain unassumed by the participant. ⁷¹⁸

Inasmuch as the general focus of the doctrine of “primary” assumption of risk is upon the conduct of the parties (and not on the characteristics of a product), this aspect of assumption of risk does not constitute a defense to a claim of strict products liability. ⁷¹⁹

B. Failure to Discover the Defect and Perceive Its
Danger

To some extent, following the repudiation of the patent-danger rule as enunciated in Campo v. Scofield, ⁷²⁰ the failure to discover a defect and perceive its danger has lost its teeth as a theory of a plaintiff’s culpable conduct. Under Campo, the manufacturer was under no duty to protect the plaintiff from a patent—that is, open and obvious—defect. Accordingly, the action would be dismissed unless the plaintiff was able to allege and prove the existence of a latent defect or danger. Now, however, the patent-danger doctrine does not, in and of itself, prevent a plaintiff from establishing a case. ⁷²¹ The judicial evolution of this defense did not amount to a complete elimination of the obviousness of the danger as a factor, but merely to the relaxation of a rigid, archaic rule. ⁷²² The openness and obviousness of the danger is still available to the defendant on the issue of whether the plaintiff exercised that degree of reasonable care under the circumstances. ⁷²³

The judicial interpretation and application of this defense was further clarified in Velez v. Craine & Clark Lumber Corp. ⁷²⁴ There, the Court of Appeals made clear that under this theory of contributory negligence, the defendant would have to demonstrate that the plaintiff both unreasonably failed to discover the defect and unreasonably failed to perceive its danger. ⁷²⁵

Moreover, under New York law, a specific hazard caused by the absence of a safety feature is considered “open and obvious” only if a plaintiff is both (1) aware that a product’s required safety features have been removed or disabled, or that he was engaging in an otherwise improper use of a product; and (2) aware of the specific danger posed by using the product without its safety features. ⁷²⁶

C. Failure to Guard Against a Known Defective
Condition: The Knowledgeable User

The defense theory of the plaintiff’s failure to guard against a known defective condition is often

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