Overruling by implication and the consequent burden upon bench and bar.
|Shoot, Brian J.
For the most part, the courts, including New York's Court of Appeals, adhere to past precedent. The Court of Appeals explained several years ago that '"stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.'" (1) The Court added that the doctrine of "stare decisis is deeply rooted in the precept that we are bound by a rule of law--not the personalities that interpret the law." (2) The Court of Appeals has adhered to precedent even on some occasions in which the only significant argument in favor of a seemingly problematic rule was that it was the settled rule. (3)
Of course, there have nonetheless been occasions in which the Court of Appeals found sufficient cause to expressly overrule its prior holdings. Sometimes, as in Bethel v. New York City Transit Authority, the Court deemed the old rule antiquated. (4) There, the court considered a nineteenth century rule that required common carriers to exercise the utmost care for the safety of its passengers, not merely reasonable care. (5) The Bethel court concluded that while that rule may have made sense "at the advent of the age of steam railroads in 19th century America" when "[t]heir primitive safety features resulted in a phenomenal growth in railroad accident injuries," the world is now a different place. (6)
Less frequently, the court has overruled a prior holding because it was, on further consideration, ill-advised, a now acknowledged mistake. Such was the eventual fate of the court's 1985 ruling in Tebbutt v. Virostek. (7) In Tebbutt, the court held that a mother could not recover compensation in tort for the emotional distress of a miscarriage or stillbirth caused by the defendant's medical malpractice. (8) The Tebbutt court reasoned that such a claim did not fit within the parameters of any previously recognized cause of action and that it therefore failed. (9) However, nineteen years later, in Broadnax v. Gonzalez, the court stated: "[W]e are no longer able to defend Tebbutt's logic or reasoning." (10) Writing for the majority, Judge Rosenblatt added:
While we are well aware of the importance of precedent, Tebbutt has failed to withstand the cold light of logic and experience. To be sure, line drawing is often an inevitable element of the common-law process, but the imperative to define the scope of a duty--the need to draw difficult distinctions--does not justify our clinging to a line that has proved indefensible. (11) Interestingly, the dissent in Broadnax, by Judge Read, focused mainly on the doctrine of stare decisis. (12) She deemed the criticism of Tebbutt "insufficient ... to overrule a 20-year-old precedent." (13)
While Broadnax and Bethel overturned prior high court rulings for very different reasons, one point in common is that those decisions expressly acknowledged and definitively overturned previously binding authority. In consequence, litigants knew exactly where they now stood. Tebbutt and the nineteenth century standard of "utmost care" were gone, history, toast. They were now supplanted by the rulings in Broadnax and Bethel. Just as importantly, the lower courts knew that as well.
Yet, over the past decade or so the Court of Appeals has, especially in the tort context, sometimes utilized a different mechanism to overrule prior rulings. It has overruled by implication. That is to say, the court overruled its prior holdings by (a) ignoring its prior, seemingly inconsistent rulings, or (b) reexamining the prior rulings and in essence declaring that the law was always different than litigants, courts, and commentators supposed it to be. I shall soon examine examples of both kinds of implied overruling of precedent.
This article is not about the merits or demerits of any of the individual rulings discussed below, but instead about the practice of overruling by implication. My thesis is that when the court does overrule its prior holdings it is far more preferable that it do so expressly, as in Broadnax and Bethel, than by implication.
First, the entire point and purpose of the doctrine of stare decisis--in essence, that the court will adhere to prior precedent unless it perceives a really good reason not to do so--is lost if the precedent is re-interpreted or ignored when it conflicts with the current ruling. Put differently, the constraining force of precedent is minimized. (14)
Second, and specifically with respect to what I here term "reinterpretive" overruling, it does not promote "the evenhanded, predictable, and consistent development of legal principles" (15) when bench and bar are told that what they thought was always the rule was always wrong. (16) What is more, because many other rulings (high court and otherwise) were likely based in whole or in part upon the rulings that have now been revisited and re-interpreted, such re-interpretation can produce uncertainty and confusion, as well as significant and not necessarily intended consequences. Nor does the realization that any ruling can be effectively overruled without being expressly overruled foster "reliance on judicial decisions, and ... the actual and perceived integrity of the judicial process." (17)
Third, disregard of ostensibly conflicting precedent--the other way in which prior rulings can be impliedly overruled--can create uncertainty and confusion of a different kind. If the court now renders a ruling that seems inconsistent with its prior ruling in Jones v. City, does that mean Jones is thereby overruled and no longer good law? Or was the instant case instead distinguishable in some respect? Absent any acknowledgment of the very existence of the Jones ruling, let alone the respect in which Jones was distinguishable or overruled, bench and bar are left to their own devices. This problem, as I will soon show, has been especially pronounced with respect to tort actions premised upon alleged violations of the statutes governing construction site safety.
OVERRULING BY OMISSION
To "Cause" and Yet Not "Cause"--How a Long Settled Rule was Overturned Without Being Overturned
What does it mean exactly to "cause" or "create" a hazard? More to the point, when a municipality is protected by a prior written notice provision that requires receipt of written notice of the subject condition as a prerequisite for tort liability, when can liability be imposed in the absence of such notice on the ground that the municipality "caused" the defect? Still more to the point, where the municipality negligently takes some action that later results in a defect (e.g., negligent repair of a pothole, negligent installation of a sign, or negligent construction of a sidewalk) does that obviate the need for prior written notice of the subject defect?
As of, say, 2005, there was a Court of Appeals ruling and a number of appellate decisions that dictated an answer to those questions. There is today, as a result of several very recent Court of Appeals decisions, a different answer. Yet, the first ruling was never expressly overruled. It was, instead, ignored.
Speaking generally now, and not necessarily about municipal tort liability or prior written notice laws, it has always been the rule, and is still the rule, that the plaintiff need not prove that the tort defendant had actual or constructive notice of the purportedly dangerous condition where the proof indicates that it was the defendant (or his or her agents or delegees) who created the condition.(18) Such was the rule more than a hundred years ago. (19) It is still the rule today. (20)
Although some of the cases of this ilk involved dangers that were or should have been immediately apparent to the person who caused them, I am not aware of any decision that held or even suggested that the general tort rule--that notice need not be proven as to those conditions that the defendant affirmatively caused--applied only in those instances in which the danger was "immediately apparent" as of the time the defendant acted. Indeed, I would submit that such a rule would be so profoundly and obviously wrong, both morally and as policy, as to preclude its serious consideration.
For example, an auto mechanic who negligently repaired a car's brakes would then escape liability as a matter of law if the brakes failed the next day but looked and worked fine when the car left the shop; an elevator maintenance company that negligently repaired an elevator would then escape liability if the elevator was working well when its employee left the site. (21)
The same rule--to the effect that the plaintiff need not prove notice regarding those conditions that the defendant affirmatively caused--also historically applied where the defendant was a municipality that had enacted a "written notice" law specifying that its receipt of written notice of the subject defect was a condition precedent to the imposition of liability.
The earliest cases to consider whether local notice laws immunized municipal defendants even as to defects they affirmatively created gave two different reasons for answering in the negative. One rationale, reflected in Minton v. City of Syracuse, rested on familiar principles of statutory construction. (22) In Minton, the written notice provision had been enacted back in 1898. (23) The Minton court reasoned that it was, even then (1898), well known that notice was not required "where the dangerous condition is produced by the city itself." (24) That being so, the court was bound to conclude "that this rule was known to the Legislature" (25) and that the notice law that was there in issue did "not apply to require written notice to the commissioner of public works of street defects created by employees in his department." (26)
The second and more simply stated rationale was that a party, even a defendant-municipality...
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