Last April, the Court of Appeals ruled in Rodriguez v. City of New York, 31 N.Y.3d 312 (2018) that the personal injury plaintiff therein was not required to prove his freedom from comparative negligence in order to obtain partial summary judgment on the issue of the defendant's liability. Since that time, much has been written, in these pages and elsewhere, concerning the ruling. David Paul Horowitz, “Burden Back Where It Belongs, but Barely,” NY St. B.J. (Part I, May 2018; Part II, June 2018; Part III, July/August 2018); Patrick M. Connors, “Procedural Decisions: Something for Everyone,” NYLJ (Aug. 17, 2018); Jeffrey S. Lichtman and Richard A. Menchini, “Court Addresses Wide Spectrum of Unresolved Issues in Tort Law,” NYLJ (Aug. 17, 2018); Robert L. Fellows and Daniel Justus Solinsky, “Navigating the Waters in the Wake of 'Rodriguez,'” NYLJ (July 25, 2018); Joshua Kelner, “An Analysis of the Court of Appeals' Decision in 'Rodriguez v. City of New York,'” NYLJ (May 1, 2018). However, the decision's impact on construction accident litigation has, to the best of my knowledge, not been discussed.

Although Rodriguez did not arise from a construction accident, the decision indeed affects construction accident litigation. In this article, I will briefly review Rodriguez itself, the ruling's general impact on personal injury litigation, and its particular impact on construction accident litigation.

'Rodriguez'

Although the issue had divided the First Department, which twice overruled its prior determinations on the issue (Cator v. Filipe, 47 A.D.3d 664, 664-65 (2d Dep't 2008) (holding that the plaintiff-movant obtains no relief unless he or she proves his freedom from comparative fault); Tselebis v. Ryder Truck Rental, 72 A.D.3d 196, 199 (1st Dep't 2010) (overruling Cator); Maniscalco v. New York City Tr. Auth., 95 A.D.3d 510 (1st Dep't 2012) (overturning Tslebis)), the generally prevailing view prior to Rodriguez was that a personal injury plaintiff could not obtain summary judgment limited to the issue of the defendant's liability unless the plaintiff also proved his or her freedom from comparative negligence. E.g., Palmer v. Ecco III Enterprises, 153 A.D.3d 1267, 1267-68 (2d Dep't 2017); Piscitello v. Fortress Trucking, 118 A.D.3d 1441, 1442 (4th Dep't 2014).

Given that CPLR 3212(e) expressly provides that except for “matrimonial actions” “summary judgment may be granted as to one or more causes of action, or part thereof … to the extent warranted, on such terms as may be just,” the rule was, in a sense, rather strange. What, after all, was so special about the liability issue as to preclude its determination, no matter how clear liability might be, absent determination of the comparative negligence issue? And why should a plaintiff moving for partial summary judgment on liability have to disprove the defense of comparative negligence but not have to affirmatively address and disprove any other affirmative defense?

Be that as it may, most courts that had addressed the issue read the Court of Appeals' ruling in Thoma v. Ronai, 82 N.Y.2d 736 (1993) as holding that a plaintiff seeking summary judgment had to disprove comparative negligence in those actions in which that was a recognized defense.

Thoma was rendered on 22 NYCRR 500.4 review, a fast-track review in which the appeal is resolved without briefing or oral argument. (The Court of Appeals instead decides the case on the basis of the Appellate Division briefs and the parties' letter submissions.) Typically, such appeals are resolved by memorandum decisions that are often no more than a paragraph long. (In Thoma, the decision was three paragraphs long, a veritable tome.)

Thoma arose from a “pedestrian knockdown” accident in which the plaintiff moved for summary judgment on the ground that it was undisputed that she was crossing in the crosswalk and with the right-of-way when the defendant's vehicle struck her. In affirming the Appellate Division's denial of summary judgment, the Thoma court said that the proof submitted on the motion “demonstrate[d] that she [plaintiff] may have been negligent in failing to look to her left while crossing the intersection” and that the plaintiff thus failed to “satisfy her burden of demonstrating the absence of any material issue of fact.”

Even though the ruling in Thoma did not purport to resolve any previously unresolved issue of law—and in fact cited no law—this was generally constructed as meaning, first, that a personal injury plaintiff could not obtain summary judgment as to the defendant's liability without also obtaining summary judgment on the issue of comparative negligence, and, second, that the plaintiff therefore had the burden of proving that he or she was not comparatively negligent (or alternatively that his or her comparative negligence was not a proximate cause of the subject accident or injury). Further, while one could have argued that the terse, law-free ruling in Thoma was inextricably bound to common law principles and should therefore not apply to statutory actions premised upon alleged violation of Labor Law §241(6), courts did not make that distinction. Cardenas v. 111-127 Cabrini Apartments, 145 A.D.3d 955, 957 (2d Dep't 2016); Mercado v. Caithness Long Is., 104 A.D.3d 576, 577 (1st Dep't 2013).

That perception of Thoma was, however, upended by Rodriguez, 31 N.Y.2d 312. In Rodriguez, the Court of Appeals held by 4 to 3 vote per decision by Judge Paul G. Feinman that a personal injury plaintiff who seeks partial summary judgment limited to the issue of the defendant's liability need not prove that he or she was not comparatively negligence. The Rodriguez majority felt that “[p]lacing the burden on the plaintiff to show an absence of comparative fault [was] inconsistent with the plain language of CPLR 1412,” the statute that requires the defendant to bear the burden of proof on that issue. The majority added that “[d]efendant's approach … if adopted, would permit a possible windfall to defendants” and, additionally, “[t]he approach we adopt is also supported by the legislative history of article 14-A.”

The dissent, by Judge Michael Garcia, stressed that Thoma had been perceived as holding that the plaintiff-movant must disprove comparative negligence and that the legislature had failed to adopt several proposed bills that would have overturned Thoma. (Much has been written about the wisdom, or lack thereof, of inferring legislative intent from legislative inaction. E.g., Acevedo v. New York State DMV, 29 N.Y. 202, 225 (2017).) Beyond that, the dissent felt that adherence to “the Thoma rule” was “the fairer outcome” inasmuch as “the issues of defendant's liability and plaintiff's comparative fault are intertwined” such that “[a] jury cannot fairly and properly assess plaintiff's comparative fault without considering defendant's actions.” Such, however, was the dissent.

General Impact

Prospectively, Rodriguez obviously means that a plaintiff moving for partial summary judgment solely as to the defendant's liability need not prove his or her freedom from comparative fault. However, as other commentators have noted, this does not legally or logically preclude the plaintiff from obtaining “traditional” summary judgment in those instances in which the plaintiff effectively disproves comparative negligence.

But what, actually, does Rodriguez change? The Rodriguez dissent felt that the impact of the majority's ruling would be minimal inasmuch as (1) the issue of comparative negligence would still remain to be tried, and (2) such a trial would, of necessity, also embrace the liability issue. For example, in the classic case in which the defendant-driver ran a red light but there was also a triable issue as to whether the plaintiff-pedestrian negligently failed to avoid collision, the jury would surely have to hear all of the evidence relating to the defendant's adjudged negligence in order to decide what percentage of fault, if any, should be assigned to the plaintiff. This led the dissent to favorably quote Professor Vincent C. Alexander's observation that “few, if any, litigation efficiencies are achieved by the entry of partial summary judgment …”

Yet, Rodriguez should effect at least three significant changes. First, and as was noted in the Kelner article mentioned above, one would expect the narrowing of issues to promote settlement. Most obviously, in the instance in which a defendant who was hoping to entirely avoid liability is now confronted with the realization that such will not occur absent an appellate reversal, one would expect the defendant's position regarding settlement will change accordingly, bringing the parties closer to settlement. Less obviously, in the instance in which the plaintiff thought that liability was a non-issue and has now been informed differently in the decision denying the plaintiff's motion for partial summary judgment, that plaintiff's position regarding settlement will likely change accordingly, also making settlement more probable.

Second, and as was noted in the above-cited Connors article, the grant of partial summary judgment would mean that interest will run from that point. I do not believe that the significance of that change is generally appreciated.

In contrast to the rule in many other jurisdictions and in virtually every other kind of New York action in which damages are sought, interest does not begin to run in a personal injury action until liability is established, whether by verdict or court ruling. This means that the defendant who is ultimately held liable nonetheless obtains the functional equivalence of an interest-free loan for as long as he or she can stave off liability. It also means that the defendant has no monetary incentive to hasten the conclusion of a litigation he or she is likely to lose. Once, however, a defendant has been found liable to some degree, the running of interest should dramatically alter that defendant's eagerness to resolve the case expeditiously.

There is a third potential impact which I have not yet come across in the literature, yet believe should logically follow. There should, I think, be fewer occasions in which cases have to be retried.

Consider, if you will, the classic case noted above in which the defendant-driver ran a red light but the plaintiff-pedestrian also may have been at fault. In the pre-Rodriguez era where partial summary judgment was verboten, that case would have likely gone to the jury on all issues … with the possibility that the jury could return a legally unsound defense verdict, which would then have to be overturned. By contrast, in the post-Rodriguez era in which the plaintiff moved for and received partial summary judgment, the jury would be given only those liability issues that could have more than one legally permissible outcome: the comparative and apportionment issues. The possibility of a legally impermissible verdict is thus removed.

Construction Accident Litigation

The impact of Rodriguez on construction accident litigation will depend on whether the claim in issue is premised upon Labor Law §240 (the so-called scaffold statute), Labor Law §200 (the codification of the common law duty to provide a safe place to work), or Labor Law §241(6) (the statutory cause of action premised upon violation of certain provisions of Industrial Code 23).

The impact of Rodriguez on Labor Law §240 claims is simple enough. There is none. Settled law (discussed in this column before) holds that the worker's comparative negligence cannot bar or reduce the worker's recovery, but also that recovery is barred if the worker's transgressions were the “sole proximate cause” of the accident. Both parts of that statement will remain unchanged, and Rodriguez is simply irrelevant.

As for claims premised upon defendant's alleged violation of Labor Law §200, Rodriguez will have the very same effects on those claims, no more and no less, as has already been noted with respect to common law claims. This is because Labor Law §200 claims essentially are common law claims, as has been frequently noted. Prevost v. One City Block, 155 A.D.3d 531, 533 (1st Dep't 2017); Kandatyan v. 400 Fifth Realty, 155 A.D.3d 848, 851 (2d Dep't 2017).

Rodriguez should, however, materially affect claims under Labor Law §241(6). Leaving aside the upstate/downstate divide on the granting of summary judgment in Labor Law §241(6) cases, an issue I previously addressed in this column, there are as a practical matter many cases in which it is absolutely clear that someone (perhaps the plaintiff's employer) violated one or more of the “concrete” specifications of Industrial Code Rule 23 and also clear that such was a material cause of the subject accident … and yet where there is a triable issue whether plaintiff was also at fault.

This is not at all an uncommon occurrence. If, for example, the employer (or someone else) created a slipping or tripping hazard on which the plaintiff-worker slipped or tripped, there will almost invariably be an issue as to whether the plaintiff was comparatively negligent in failing to observe or avoid the hazard. In the pre-Rodriguez era, the plaintiff could not obtain partial summary judgment in such cases, meaning, amongst other consequences, the plaintiff was not assured of even a partial recovery and the defendants could still enjoy the interest-free loan accorded to personal injury defendants who have not yet been adjudged liable. Rodriguez changes that outcome, and its effect has already been felt. Quizhpi v. S. Queens Boys & Girls Club, 166 A.D.3d 683, 685 (2d Dep't 2018); Luciano v. New York City Hous. Auth., 157 A.D.3d 617 (1st Dep't 2018).

In sum, while Rodriguez did not arise from a construction accident, the ruling should significantly impact construction accident litigation in those instances in which recovery is premised upon Labor Law §241(6).

Brian J. Shoot is a partner with the firm of Sullivan Papain Block McGrath & Cannavo. He is a member of the Advisory Committee on Civil Practice of the Office of Court Administration of the New York State Unified Court System, and of the American Academy of Appellate Lawyers.