In the past term, the Court of Appeals issued four decisions that further addressed a wide range of unresolved issues in tort law. In Rodriguez v. City of New York, 31 N.Y.3d 312 (2018), the court addressed whether a plaintiff must demonstrate the absence of comparative negligence to obtain partial summary judgment on the issue of a defendant's liability. In Contact Chiropractic, P.C. v. N.Y.C. Transit Authority, 31 N.Y.3d 187 (2018), the court considered whether a claim for no-fault benefits against a self-insured entity is governed by the three-year statute of limitations applicable to statutory causes of action under CPLR 214(2) or the six-year limitations period applicable to breach of contract claims under CPLR 213(2). The court, in Connolly v. Long Island Power Authority, 30 N.Y.3d 719 (2018), revisited the often elusive distinction between “governmental” and “proprietary” functions, in the context of the functions of the Long Island Power Authority. Finally, in Forman v. Henkin, 30 N.Y.3d 656 (2018), the court sought to resolve a split amongst lower courts concerning the proper standard to apply to a discovery dispute regarding documents and information maintained on a social media account.

'Rodriguez'

In Rodriguez v. City of New York, the plaintiff, an employee of the New York City Department of Sanitation, commenced a negligence action against the city of New York after he sustained a serious spinal injury during the course of his employment. As plaintiff and coworkers were preparing to equip a sanitation truck with tire chains and plows for snow removal, a coworker was backing the sanitation truck into a garage bay and lost control of the truck, which collided with a parked car. The parked car, in turn, struck plaintiff and pinned him against a tire rack.

Upon the completion of discovery, plaintiff moved for partial summary judgment under CPLR 3212, seeking an order resolving the issue of the city's liability in his favor. The trial court denied plaintiff's motion because, among other things, it concluded that issues of fact existed as to whether plaintiff's negligence contributed to the incident. The Appellate Division, First Department affirmed. Rodriguez v. City of New York, 142 A.D.3d 778 (2016). Relying on the Court of Appeals' decision in Thoma v. Ronai, 82 N.Y.2d 736 (1993), a majority of the Appellate Division panel held that summary judgment was inappropriate because the plaintiff failed to establish the absence of comparative fault.

Viewing the issue as “a question of statutory construction of the CPLR,” the Court of Appeals reversed the First Department and held that requiring a plaintiff to disprove comparative negligence on a motion for partial summary judgment as to a defendant's liability was contrary to the intent of the Legislature. The court explained that its “primary consideration” when engaging in statutory interpretation is to “discern and give effect to the Legislature's intention,” which is best reflected by the plain language of the statute. In seeking to divine the Legislature's intent, the court looked both to CPLR 1411 and CPLR 1412, which codify two of the core principles underlying New York's comparative fault system, and to CPLR 3212, which governs motions for summary judgment.

The familiar dictate of CPLR 1411 provides that a personal injury plaintiff's contributory fault “shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished” by the proportionate degree of fault attributable to the plaintiff. The court likewise looked to CPLR 1412, which identifies comparative fault as “an affirmative defense to be pleaded and proved by the party asserting the defense.” The court reasoned that the First Department's approach “defie[d] the plain language of CPLR 1411” and could provide defendants with a windfall because it would allow the jury to decide whether a defendant was negligent even when the defendant's negligence should be determined as a matter of law, as might be the case if the defendant violated a safety statute. Moreover, the court found that placing a burden on plaintiff to establish the absence of comparative negligence would contravene the plain language of CPLR 1412 by requiring “the plaintiff, instead of the defendant, to prove an absence of comparative fault in order to make out a prima facie case on the issue of defendant's liability.”

Rejecting the city's argument that CPLR 3212 supported requiring a plaintiff to prove the absence of comparative negligence, the Court of Appeals explained that comparative fault is not a “defense” to liability because it does not prevent the plaintiff from proving any element of a negligence claim. The court likewise rejected as antithetical to the goals of summary judgment the notion that a trial court could set aside a jury's erroneous conclusion that a negligent defendant is not liable. The court noted that the vehicle of summary judgment is intended “to streamline and focus the factfinder on the issues that need resolution, and avoid having juries make findings that are contrary to law,” which would be curtailed if the city's view were to be adopted.

The court found further support in article 14-A's legislative history, which indicated that the Legislature desired to alter the common law rule requiring the plaintiff to plead and prove the absence of comparative fault to recover. In adopting article 14-A, the Legislature sought to limit the relevance of comparative fault to the amount of plaintiff's damages and to require the defendant to plead and prove its applicability. Thus, the court rejected the city's argument that Thoma controlled, distinguishing it on the ground that the court did not have occasion to address “the import of article 14-A” when it rendered its decision in that case.

In a dissenting opinion joined by two other justices, Judge Michael Garcia argued that the First Department correctly applied the Court of Appeals decision in Thoma in holding that plaintiff failed to demonstrate the absence of comparative negligence and was, therefore, not entitled to summary judgment. Garcia further asserted that the majority erroneously concluded that its holding better effectuates the purpose of partial summary judgment to make trial more efficient. Citing the Practice Commentaries to the CPLR, Garcia explained that granting partial summary judgment as to the defendant's liability achieves “few, if any, efficiencies” because the defendant remains “entitled…to present an all-out case on the plaintiff's culpable conduct” to the jury. As it would still be necessary for the jury to determine the degree of the plaintiff's comparative fault and the plaintiff's damages in separate proceedings, Garcia contended that allowing the jury to assess the degree of fault of both parties would be the more “practical approach.”

Regarding the majority's interpretation of the legislative history, Judge Garcia asserted that that proposed amendments to CPLR 1412, which expressly sought to place the burden of proof on the defendant to prove the plaintiff's contributory negligence, indicated that the Legislature tacitly accepted the approach set forth in Thoma. The majority, however, disagreed with Garcia's position, explaining in a footnote that the court rarely finds “legislative inaction” to be a persuasive indication of the Legislature's intent, particularly where the Appellate Divisions had not adopted a uniform interpretation of a statute.

'Contact Chiropractic'

In Contact Chiropractic, P.C. v. N.Y.C. Transit Authority, plaintiff Contact Chiropractic provided health care services to a patient for injuries she suffered in a motor vehicle collision while riding as a passenger on a bus owned by the defendant New York City Transit Authority. After receiving an assignment of the patient's no-fault benefits, plaintiff submitted claims for reimbursement to defendant Transit Authority between March 14, 2001 and August 27, 2001 for the patient's medical bills. On Jan. 8, 2007, plaintiff commenced an action against defendant to recover the unpaid no-fault benefits.

Defendant moved to dismiss the complaint under CPLR 214(2), which provides that an action to recover upon a liability created or imposed by statute must be commenced within three years. It was fairly well-settled that a claim for unpaid no-fault benefits owed pursuant to an insurance policy was subject to CPLR 213(2)'s six-year statute of limitations for claims based on “a contractual obligation or liability.” However, relying on case law from the Appellate Division, First Department, defendant argued that plaintiff's claim was not governed by the six-year limitations period because defendant was a “self-insured” entity, whose no-fault obligations were not covered by an insurance policy.

In opposition, plaintiff relied on precedent from the Appellate Division, Second Department for the rule that a “claim for uninsured motorist benefits against a self-insured vehicle owner, while statutorily mandated, remains contractual rather than statutory in nature and, as such, is subject to the six-year statute of limitations.” Civil Court denied defendant's motion to dismiss, applying the Second Department's approach, and both the Appellate Term and the Second Department affirmed. Contact Chiropractic, P.C. v. N.Y.C. Transit Auth., 135 A.D.3d 804 (2d Dep't 2016).

Resolving the split between the First and Second Departments, a divided Court of Appeals adopted the First Department's analysis that applied the three-year statute of limitations under CPLR 214(2). While the majority recognized that CPLR 214(2)'s three-year statute of limitations does not apply to all claims pursuant to which a party seeks a statutory remedy, the court explained that CPLR 214(2) applies if “liability would not exist but for a statute.” Having previously decided in Aetna Life Ins. v. Nelson, 67 N.Y.2d 169 (1986) that no-fault benefits “are a form of compensation unknown at common law, resting on predicates independent of the fault or negligence of the injured party,” the court concluded that a claim for reimbursement of no-fault benefits is purely statutory and, therefore, subject to CPLR 214(2).

Judge Garcia, in a dissenting opinion joined by two other justices, urged that existing case law and “[c]onsiderations of public policy and fundamental fairness” supported the application of the six-year statute of limitations to claims against both insured and self-insured entities. Garcia explained that the court previously recognized that a self-insured entity is the “functional equivalent” of an insured entity under the no-fault law and that no “meaningful difference” exists between the two. He noted that because a party should not be able to “decrease the obligations that it owes to its insureds” by electing to be treated as a self-insured entity, it would be “arbitrary and inequitable” to apply a shorter statute of limitations to claims against self-insured entities.

'Connolly'

In Connolly v. Long Island Power Authority, 30 N.Y.3d 719 (2018), plaintiffs commenced individual actions, which were consolidated on appeal, against the Long Island Power Authority (LIPA), Long Island Lighting Company (LILCO), and National Grid Electric Services, LLC (National Grid), seeking damages for real and personal property destroyed during Hurricane Sandy. LIPA, a governmental entity, its wholly-owned subsidiary LILCO, and its agent National Grid, shared responsibility for providing electricity to the Rockaway Peninsula.

Plaintiffs asserted that they sustained damages due to the defendants' negligence in failing to shut down the flow of electricity to the Rockaway Peninsula before and during Hurricane Sandy, despite having knowledge that storm surges posed an unreasonable risk of fire. When flood waters reached components of LIPA's electric transmission and distribution facilities, the components short circuited, resulting in fire and damage to plaintiffs' properties.

Defendants moved to dismiss plaintiffs' respective actions pursuant to CPLR 3211(a)(7) under the doctrine of governmental function immunity, arguing that dismissal was warranted because: (1) LIPA's decision to continue to supply the Rockaway Peninsula with power during the storm was discretionary in nature; and (2) even if LIPA's decision was not discretionary, plaintiffs failed to state a cause of action because they failed to allege a special duty. The Supreme Court denied the defendants' motions, and the Appellate Division, Second Department affirmed. See, e.g., Connolly v. Long Island Power Auth., 141 A.D.3d 555 (2d Dept. 2016).

On appeal, the Court of Appeals first addressed the issue of whether LIPA was acting in a governmental or proprietary capacity, an issue that has occupied the court in recent years. Judge Leslie Stein explained that a special duty would be an element of plaintiffs' negligence claims only if LIPA's actions were deemed governmental, and that whether an entity's conduct is governmental or proprietary “turns solely on the acts or omissions claimed to have caused the injury.” On a motion to dismiss, defendants bear the burden of demonstrating, as a matter of law, that the challenged act or omission was governmental “based solely on plaintiffs' amplified pleadings.”

The Court of Appeals held that these defendants failed to carry that burden. LIPA conceded that the electrical services it provided in the ordinary course of business were proprietary; indeed, LIPA did not dispute that private enterprise had traditionally provided electricity. However, defendants argued that the conduct at issue was governmental because it concerned public protection against a natural disaster. The court rejected defendants' argument, holding that the mere “magnitude of the disaster” was insufficient to transform an otherwise proprietary function into a governmental function “without any reference to the circumstances and nature of the specific act or omission alleged—i.e., the failure to de-energize.” Elaborating upon its holding in a footnote, the court explained that “in cases in which it is difficult to determine whether the municipal entity has acted in a proprietary or governmental capacity…, such determinations have been made after discovery on summary judgment or after trial.”

In a concurring opinion, Judge Jenny Rivera agreed that defendants failed to carry their burden, but argued that the majority erred in suggesting that defendants may be able to demonstrate that they were acting in a governmental capacity at a later stage in the litigation. Because the court's decision would provide the parties with an incentive to continue to litigate the issue of immunity, Rivera expressed concern that the parties would “incur unwarranted litigation costs and needlessly expend judicial resources on an argument that has no possibility of success.”

Rivera asserted that LIPA, as a“[a] governmental entity that replaced a private entity to supply a service that historically has been provided by private entities,” could not have been engaged in a governmental function under any conceivable circumstances because LIPA's “activities essentially substitute for or supplement traditionally private enterprises” and were not carried out “pursuant to the general police powers.” Rivera further reasoned that, because the challenged action did not constitute an exercise of police powers, LIPA's conduct did not implicate the underlying purpose of the governmental function immunity doctrine which is “to ensure the proper deployment of limited governmental resources.”

'Forman'

In Forman v. Henkin, plaintiff brought a personal injury action after falling from a horse owned by defendant. As a result of her alleged traumatic brain injuries, plaintiff claimed that she experienced “memory loss, difficulties with written and oral communication, and social isolation.” Plaintiff testified at her deposition that she posted several photographs on her Facebook account reflecting her “pre-accident active lifestyle” and that she deactivated her account approximately six months after the incident. After plaintiff's deposition, defendant moved to compel plaintiff to provide an authorization to access her “private” Facebook account, arguing that the photographs and messages were relevant to plaintiff's claims that her injuries prevented her from engaging in a variety of activities and impaired her communication skills.

The Supreme Court granted defendant's motion to compel in part, requiring plaintiff to produce: (1) all post-incident photographs of herself, except those “depict[ing] nudity or romantic encounters”; and (2) an authorization for records identifying each time she posted a private message after the incident and the length of each such message. On appeal, a divided panel of the Appellate Division, First Department reversed that part of the decision compelling plaintiff to produce the post-incident photographs and to provide the authorization for the Facebook account. Forman v. Henkin, 134 A.D.3d 529 (2015).

Reinstating the Supreme Court's decision, the Court of Appeals held that discovery of social media content is not subject to a specialized discovery standard. Rather, courts should apply the “general principles” applicable to discovery in addressing a dispute regarding social media. The court rejected the standard applied by the First Department, which required the party seeking discovery of “private” content to establish that the opposing party posted “public” content contradictory to his or her allegations.

Reasoning that this approach would permit a party to “unilaterally obstruct” discovery through the selective use of public and private accounts, the court held that disclosure should be predicated upon whether the requested discovery is “material and necessary,” not whether particular information is “already available.” The court also rejected as overbroad the rule adopted by other courts that a plaintiff's entire Facebook account is automatically discoverable in a personal injury action, an approach that the court believed would likely “yield far more non-relevant than relevant information.”

In holding that courts should apply the traditional rules governing discovery, the court offered guidance to trial courts in addressing the discoverability of social media content. The court explained that trial courts should initially evaluate the likelihood that a social media account contains relevant material, taking into consideration the nature of the incident, the injuries alleged, and any other relevant circumstances. If the social media content sought is potentially relevant, a trial court should then weigh the movant's interests in the materials sought against the non-movant's interests in withholding the materials, including the non-movant's privacy interests. The court noted that to strike the proper balance between the parties' interests, the trial court may restrict the subject matter of the documents to be disclosed—as the Supreme court had done in its discovery order—or impose temporal limitations to confine discovery to a timeframe in which the non-movant was likely to have posted relevant materials.

Applied to the facts in Forman, the court ruled that defendant easily carried his burden of demonstrating that the materials the Supreme Court ordered plaintiff to disclose were reasonably likely to be relevant. The request for production of photographs was deemed “reasonably calculated to yield evidence relevant to plaintiff's assertion” that her injuries limited her ability to engage in certain activities and interfered with her social life, and the records pertaining to plaintiff's messaging history were likely to bear upon her claim that her injuries impaired her written communication skills. The Court of Appeals further held that the Supreme Court properly exercised its discretion in excluding the production of photographs depicting nudity or romantic encounters.

It is worth noting that only plaintiff appealed the Supreme Court's decision, which denied defendant's request for disclosure of the content of plaintiff's private Facebook messages. Thus, the Court of Appeals did not have an opportunity to address whether disclosure of the written messages would have been proper. Had the court addressed the issue, it may very well have held that the written messages were subject to disclosure in light of their potential relevance to plaintiff's claims.

Jeffrey S. Lichtman and Richard A. Menchini are partners at O'Hare Parnagian. Thomas Cummings assisted with the preparation of this article.