The extrapolation of defendants' liabilities under CPLR Article 16 where the plaintiff is contributorily negligent: an update toward resolving a perceived ambiguity of CPLR 1601.

• Author: Dillon, Mark C.
• Position: New York Civil Practice Law and Rules

Imagine the following scenario under New York Civil Practice Law and Rules ("CPLR") Article 16: A plaintiff is attacked and stabbed by two patrons outside of a saloon and is caused to incur injuries. The plaintiff commences an action against the patrons and against the saloon, seeking damages for personal injuries sustained as a result of, inter alia, the saloon's negligence and violation of the Dram Shop Act. (1) At trial, a jury renders a verdict finding the saloon 50% at fault, the patrons 45% at fault, and the plaintiff 5% contributorily negligent. Under CPLR 1601, the saloon's liability would appear on the face of the statute to be capped at its 50% share of total liability assigned to all persons liable, insulating the defendant saloon from joint and several liability for any greater portion of damages. (2) Further imagine the plaintiff arguing that his 5% contributory negligence should not be included within the computations of CPLR 1601, so that upon extrapolating the defendants' collective liability from 95% to 100%, the saloon's proportionate share rises from 50% to 52.63%. Under these circumstances, the plaintiff argues, the defendant saloon does not qualify for the limitations on its liability under CPLR 1601, and the entire judgment could be enforced against the "deep pocket" saloon by virtue of joint and several liability. Should the saloon's liability be capped at its 50% equitable share of liability as assessed by the jury pursuant to the protections afforded by CPLR 1601, or alternatively, should the plaintiffs contributory negligence be deducted from the jury's total and render the saloon ineligible for the protective benefits of CPLR 1601 based upon its 52.63% share of extrapolated liability?

The foregoing set of facts requires no imagination. They arose in the case of Robinson v. June. (3) The conflicting arguments presented in Robinson on behalf of the plaintiff and the defendant saloon exposed, in a practical way that affected the interests of the parties, an arguable shortcoming of CPLR Article 16; namely whether, in performing the calculus of CPLR 1601, the percentage of contributory negligence assessed against the plaintiff is to be included within, or deducted from, the total assigned liability in cases such as Robinson, where the application of Article 16 limitations of liability hang in the balance. This question of CPLR 1601, as will be shown below, yields no easy answer.

Before addressing the analysis and determination of the court in Robinson, as well as subsequent discussions of the same or similar issues by other courts and by academia, a discussion is in order summarizing CPLR Article 16 and its culmination of an almost forty-year evolution of New York law regarding the state's allocation of fault and losses between parties.

1. THE BACKGROUND OF CPLR ARTICLE 16--THE DIVISION OF NEGLIGENCE AS BETWEEN PLAINTIFFS AND DEFENDANTS

   The law in New York traditionally prohibited plaintiffs from recovering civil damages in instances where the plaintiffs were contributorily negligent to any degree. (4) The rule was based upon the legal theory that plaintiffs' negligence constituted an intervening cause breaking the connection between the defendants' negligence and the plaintiffs' injuries. (5) Thus, a plaintiff found contributorily negligent for an occurrence, for as little as 1% of the total culpability, was barred from receiving any monetary award. (6) Uncertainty over a plaintiffs potential contributory negligence was undoubtedly a factor leading to the settlement of cases prior to trial, as plaintiffs might otherwise risk receipt of any monetary compensation for claimed losses absent a solid case of liability in their favor. However onerous the contributory negligence bar may seem to New York plaintiffs and practitioners today, it remains the rule in four states and the District of Columbia, (7) and in a modified form in twelve states where recovery is barred if the plaintiffs contributory negligence is 50% or more, (8) and in another twenty-one states if the plaintiffs contributory negligence eclipses 50%. (9)

   The contributory negligence bar was eliminated in New York in 1975 with the enactment of CPLR Article 14-A, and specifically, CPLR 1411. The statute expressly abolished the rule that plaintiffs' contributory negligence or assumption of risk acts as a complete bar to recovery. (10) The statute was made applicable to any cause of action accruing after September 1, 1975. (11) In the former rule's stead, CPLR 1411 permits plaintiffs to recover damages in amounts that are diminished in the same proportion that their own culpable conduct bears to the culpable conduct of all parties in the action. (12) It remains the law today and is sometimes referred to in decisional authority as the doctrine of pure comparative negligence. (13)

   Plaintiffs subject to the earlier contributory negligence rule were placed by the law in a precarious "all or nothing" position during trials against single and multiple defendant tortfeasors. The prior law must have challenged the best of trial attorneys to soberly assess the odds of a plaintiffs verdict at trial and to advise clients of those odds. It must have also heightened the pressure upon trial attorneys to be prepared with all necessary witnesses, subpoenas, documents, research, arguments and nuances, lest a single trial misstep affect the likelihood of a finding of contributory negligence that would make or break the case.

   New York has been, and continues to be, a state that recognizes the joint and several liability of defendants. (14) In actions involving two of more defendants that are found liable, joint and several liability permits plaintiffs to enforce the entirety of a judgment against one select defendant in the action. (15) Typically, plaintiffs would elect to enforce their entire judgments against the defendant in an action that is most solvent of known to have the "deepest pockets." (16) Thus, in pre-1975 trials where the contributory negligence bar was successfully hurdled and two or more defendants were found liable, plaintiffs were blessed with the unfettered right to enforce their judgments against the defendant of their choice based on the ease with which the judgment could be satisfied against the chosen defendant. Joint and several liability provided plaintiffs with the easiest pot to reach at the end of the trial rainbow. Any loss incurred by the payor defendant, by paying more than its equitable share of fault absent contribution from jointly and severally liable co-defendants, was a loss that public policy placed upon the shoulders of that defendant found liable to at least some degree, rather than placing the inability to fully collect a judgment upon the shoulders of the innocent plaintiff. (17)

2. THE DIVISION OF NEGLIGENCE AS BETWEEN CO-DEFENDANTS

   The enactment of CPLR 1411 was not the only significant change in New York law in the early-to-mid 1970s with respect to the apportionment of fault. Prior to 1972, the common law had allowed any plaintiff to enforce a judgment in its entirety against any named defendant of the plaintiffs choosing subject to the judgment, and in such circumstances, the payor defendant had no redress against a co-tortfeasor for contribution, whether the co-tortfeasor was a party to the action or not. (18) Contribution between co-tortfeasors was prohibited on public policy grounds: that courts should not involve themselves in settling disputes between wrongdoers. (19)

   A piece of the common law prohibition against contribution was chipped away in 1928 with the enactment of Civil Practice Act 211-a ("CPA 211-a"). (20) The statute permitted contribution claims by one defendant against another defendant where a joint and several judgment had been rendered against both but paid by one. (21) CPA 211-a and its successor statute, the 1962 version of CPLR 1401, contained an important "catch 22," however. As noted by the Court of Appeals in Putvin v. Buffalo Elec. Co., the right of a defendant to obtain contribution from a co-tortfeasor was dependent upon there being, inter alia, a finding of joint and several liability against both tortfeasors in the first instance. (22) If a plaintiff sued some but not all of the potentially-liable tortfeasors, the defendants that had been sued still had no recourse for contribution against the tortfeasors that the plaintiff had not sued, since non-party tortfeasors were not by definition jointly and severally liable in damages. (23) Recourse for such tortfeasors was limited to claims sounding in indemnification, where a wholly "passive" tortfeasor held vicariously liable for the negligence of an "active" tortfeasor was permitted to seek indemnification from the actively-negligent party. (24) Common law indemnity did not, and does not, involve the apportionment of liability, but is instead an award of "all or nothing." (25) As a result, where co-tortfeasors shared fault for a plaintiffs damages but at least one co-tortfeasor was not sued by the plaintiff, the sued defendant's right to be indemnified for the payment of a judgment proved to be illusory. (26)

   The law changed significantly in 1972 with Dole v. Dow Chemical Co. (27) In Dole, the Court of Appeals recognized the right of a sued tortfeasor to interpose a claim for contribution against any other potential tortfeasor and, if necessary, to join other tortfeasors as parties in the action. (28) Liability between defendant tortfeasors was to be apportioned based upon their relative culpability as to be determined in any action by the trier of fact. (29) A defendant paying more than its equitable share of a judgment under joint and several liability could, under Dole, thereby recover the difference from its co-defendants, (30) resulting ultimately in an equitable sharing of losses amongst civil wrongdoers. (31)

   The rule set forth in Dole was codified in 1974 by the enactment of CPLR Article 14. (32)...