Whether plaintiffs in personal injury actions, who seek to collect noneconomic damages from a joint tortfeasor which has been found 50% or less liable, are procedurally barred from asserting an exception to CPLR 1601(1) for the first time on appeal.
Yes. The unambiguous language of CPLR 1603 requires such plaintiffs to allege and prove by a preponderance of the evidence that the limitation on liability in CPLR 1601(1) does not apply. The need for appropriate notice to prevent surprise is implicit in this requirement; failure to properly obtain leave to amend the pleadings with a claimed exception under CPLR 1603 deprives the defendants of notice.
Plaintiff was injured when a roll-up metal security gate unexpectedly came down, hitting him on the head. The door was owned and operated by Mandell Food Stores (Mandel), but manufactured by United Steel Products (United Steel). Plaintiff sued Mandell, who in turn began a third-party action against United Steel. The jury found Mandell and United Steel jointly liable for the plaintiff's injuries. It assigned 20% of the fault to Mandell and 80% to United Steel. The jury also awarded economic damages of $330,000 (later reduced to $128,400 by collateral source contributions) and noneconomic damages of $750,000.
Under the traditional rule, tortfeasors were jointly and severally liable to the plaintiff, regardless of each tortfeasors's respective degree of culpability. In 1986 the traditional rule was modified in personal injury cases by Article 16 of CPLR 1603. Under the new rule, where the defendant has been deemed 50% or less responsible for the plaintiff's injuries, plaintiff's recovery from that defendant for non-economic loss is limited to the defendant's proportionate share. Eleven exceptions to this rule are delineated in CPLR 1602. A party claiming one of these exceptions must plead and prove it by a preponderance of the evidence. CPLR 1603.
The Supreme Court denied defendant's motion (based on CPLR 1601(1)) to limit plaintiff's recovery of noneconomic loss to Mandell's share of the fault. The court allowed plaintiff to recover the full amount of the judgment from Mandell. Defendants appealed. On appeal the plaintiff claimed for the first time that an exception to CPLR 1601(1) contained in CPLR 1602 precluded limiting recovery to Mandell's pro-rata share of fault. The Appellate Division reversed, finding the plaintiff's proffered exception inapplicable. It held that Plaintiff could recover from Mandell only its 20% proportionate share of the noneconomic award, and Mandell could not seek contribution for this amount from United Steel. Conversely, the Appellate Division held that Plaintiff could recover 100% of the economic loss from Mandell, which could in turn seek an 80% contribution from United Steel.
The unambiguous language of CPLR 1603 requires plaintiffs in a personal injury action who seek to recover noneconomic damages from a joint tortfeasor which is 50% or less liable to "allege and prove" that CPLR 1601(1) limitations on liability do not apply. Because CPLR 1603 can be procedurally awkward for plaintiffs (since an Article 16 defense cannot always be predicted), courts generally permit plaintiffs to amend pleadings in order to comply with that section.
The Plaintiff failed to timely plead an exception to CPLR 1601(1). He also never sought leave to amend his pleadings to include such an exception. Plaintiff's argument that this omission was harmless (because it would effect only the apportionment of damages, and not the legal theory of the case) is wrong. The primary function of a pleading is to provide the adverse party with notice of the pleader's claim, thereby preventing surprise and enabling the party to prepare its response or adjust its trial strategy. Absent such notice, a defendant is prejudiced.
Prepared by the liibulletin-ny Editorial Board.