Analysis

CPLR article 16 modifies the common law rule of joint and several liability by limiting a joint tortfeasor's liability in certain circumstances (L 1986, ch 682). Prior to article 16's enactment, a joint tortfeasor could be held liable for the entire judgment, regardless of its share of culpability (see, Sommer v Federal Signal Corp., , 79 NY2d 540, 556). The Governor's Advisory Commission on Liability Insurance, chaired by former Court of Appeals Judge Hugh R. Jones, had recommended that the rule of joint and several liability be amended "to assure that no defendant who is assigned a minor degree of fault can be forced to pay an amount grossly out of proportion to that assignment" (Insuring Our Future, Report of the Governor's Advisory Commission on Liability Insurance, at 132 [April 7, 1986]). Article 16, as enacted, limits a joint tortfeasor's liability for noneconomic losses to its proportionate share, provided that it is 50% or less at fault (CPLR 1601 [1]). While article 16 was intended to remedy the inequities created by joint and several liability on low-fault, "deep pocket" defendants, it is nonetheless subject to various exceptions that preserve the common law rule. At issue here is whether CPLR 1602 (2)(iv) is one of those exceptions.

CPLR 1602 (2)(iv) provides that article 16 shall "not be construed to impair, alter, limit, modify, enlarge, abrogate or restrict * * * any liability arising by reason of a non-delegable duty or by reason of the doctrine of respondeat superior." This is not an exception to the rule of apportionment. Rather, it is one of four provisions in 1602(2) that reaffirm "certain pre- existing statutory and common law limitations on liability" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 1602 , at 616).

Specifically, CPLR 1602 (2)(iv) is a savings provision that preserves principles of vicarious liability. It ensures that a defendant is liable to the same extent as its delegate or employee, and that CPLR article 16 is not construed to alter this liability (see, Alexander, Practice Commentaries, op. cit., at 616-617; see also, Kreindler, Rodriguez, Beekman & Cook, New York Law of Torts § 10.11, at 602-603 [16 West's New York Practice Series, 1997]). Thus, for example, a municipality that delegates a duty for which the municipality is legally responsible, such as the maintenance of its roads, to an independent contractor remains vicariously liable for the contractor's negligence, and cannot rely on CPLR 1601 (1) to apportion liability between itself and its contractor (see, Faragiano v Town of Concord, __ NY2d __ [decided today]; see also, Kreindler, Rodriguez, Beekman & Cook, op. cit., at 602-603 [premises owner having a non-delegable duty]). Similarly, CPLR 1602 (2)(iv) prevents an employer from disclaiming respondeat superior liability under article 16 by arguing that the true tortfeasor was its employee. However, nothing in CPLR 1602 (2)(iv) precludes a municipality, landowner or employer from seeking apportionment between itself and other tortfeasors "for whose liability [it] is not answerable" (id.).

Our interpretation of CPLR 1602 (2)(iv) as a savings provision, and not an exception, is supported by the statutory scheme of CPLR 1602 . CPLR 1602 includes several exceptions to the apportionment rule, all of which explicitly provide that article 16 shall "not apply" in certain circumstances (CPLR 1602 [3]-[11] [emphasis added]). CPLR 1602 (2)(iv), however, does not contain this prefatory language, but instead provides that the limitations on liability shall "not be construed" to impair, limit or modify any liability arising from a non-delegable duty or respondeat superior (emphasis added)(see also, CPLR 1602 [12] [containing the same shall "not be construed" language]). This language indicates that the Legislature did not intend 1602(2)(iv) to establish a free-standing exception to the apportionment rule. Rather, 1602(2)(iv) was merely intended to insure that the courts did not read article 16 as altering pre- existing law regarding respondeat superior or non-delegable duties. Thus, it was solely a savings provision. Further, where, as here, the Legislature uses different terms in various parts of a statute, courts may reasonably infer that different concepts are intended (Matter of Albano v Kirby, , 36 NY2d 526, 530; McKinney's Cons Laws of NY, Book 1, Statutes, § 236, at 403). Given the precise "shall not apply" language chosen by the Legislature to describe the exceptions, the absence of such language in CPLR 1602 (2)(iv) indicates that the Legislature never intended to include an exception for liability based on a breach of a non-delegable duty.

Reinforcing this interpretation is the existence of a separate non-delegable duty exception under subdivision 8 of the same section. CPLR 1602 (8) provides that article 16 "shall not apply" to any person held liable for violating article 10 of the Labor Law, which imposes on owners and contractors a non- delegable duty to maintain a safe workplace. To construe CPLR 1602 (2)(iv) as creating a blanket non-delegable duty exception would render CPLR 1602 (8) meaningless and redundant. Such a construction, "resulting in the nullification of one part of the [statute] by another," is impermissible (Matter of Albano v Kirby, supra, 36 NY2d, at 530; McKinney's Cons Laws of NY, Book 1, Statutes, § 98, at 223), and violates the rule that all parts of a statute are to be harmonized with each other, as well as with the general intent of the statute (Matter of Society of N.Y. Hosp. v Del Vecchio, , 70 NY2d 634, 636).

Thus, giving effect to "all the language employed by the particular legislation" (Ferrin v New York State Dept. of Correctional Servs., , 71 NY2d 42, 47), we conclude that CPLR 1602 (2)(iv) is not an exception to limited liability but a savings provision that preserves vicarious liability (see, Faragiano v Town of Concord, __ NY2d __, [decided today]).

Our holding today is fully consistent with article 16's purpose. Reading 1602(2)(iv) as an exception would impose joint and several liability on municipalities, landowners and employers, who often owe a non-delegable duty or are vicariously liable for their agents' actions. Ironically, these are precisely the entities that article 16 was designed to protect (see, Insuring Our Future, Report of the Governor's Advisory Commission on Liability Insurance, at 130-131). To construe 1602(2)(iv) as an exception to apportionment would defeat the legislative goal of benefitting low-fault, "deep pocket" defendants by imposing joint and several liability whenever a defendant's liability is based on a non-delegable duty or respondeat superior.

Further, as this Court has recognized, there is no general rule as to what constitutes a non-delegable duty (see, Kleeman v Rheingold, , 81 NY2d 270, 275). Rather, the determination "necessarily entails a sui generis inquiry, since the conclusion ultimately rests on policy considerations" (id.). Given the breadth of responsibilities that may be considered non- delegable, we cannot conclude that the Legislature intended to exclude the breach of every non-delegable duty from article 16.

Our reading of CPLR 1602 (2)(iv) as a savings provision is also supported by the Governor's approval memorandum, which states:

"The bill also preserves rules of vicarious liability under which one party is liable to the same extent as another. The crafting of these exceptions and savings provisions reflects careful deliberations over the appropriate situations for a modified joint and several liability rule and demonstrates the benefits of addressing this important reform through the legislative process" (Governor's Approval Mem, Bill Jacket, L 1986, ch 682, reprinted in 1986 McKinney's Session Laws of NY, at 3183 [emphasis added]).

We reject the interpretations of some courts holding that CPLR 1602 (2)(iv) creates a non-delegable duty exception to article 16 (see, e.g., Nwaru v Leeds Management Co., 236 AD2d 252; Cortes v Riverbridge Realty Co., 227 AD2d 430). None of these cases involve any meaningful analysis of CPLR 1602 (2)(iv); rather, they assume, without explanation, that CPLR 1602 (2)(iv) precludes application of CPLR 1601 . As discussed above, that conclusion is incorrect.

Nor did our recent decisions in Morales v County of Nassau (94 2 218) and Cole v Mandell Food Stores (93 2 34) recognize a non-delegable duty exception to limited liability under article 16. In both cases, we held that the issue of whether a purported non-delegable duty exception applied was unreviewable because of the plaintiffs' failure to plead it (Morales, supra, 94 NY2d, at 223; Cole, supra, 93 NY2d, at 38- 39). Morales and Cole should not be read as creating a non- delegable duty exception. Indeed, both appeals were resolved without reaching the question before us today: whether CPLR 1602 (2)(iv) precludes apportionment for noneconomic damages among joint tortfeasors where liability arises from a breach of a non- delegable duty. Having determined that it does not, we conclude that the County is entitled to a jury charge on apportionment between itself and King.

Accordingly, we answer the certified question as follows: CPLR 1602 (2)(iv) does not preclude a tortfeasor such as the County, in the facts and circumstances of this case, from seeking apportionment.