Neville Rangolan and Shirley Rangolan,
The County of Nassau and Nassau County Sheriff's Department,
2001 NY Int. 33
Under CPLR article 16, a defendant may apportion its liability for noneconomic damages among other tortfeasors provided that it is 50% or less at fault (CPLR 1601 ). The issue before us, as certified by the United States Court of Appeals for the Second Circuit, is whether CPLR 1602 (2)(iv) precludes apportionment where a defendant's liability arises from a breach of a non-delegable duty. We hold that CPLR 1602 (2)(iv) is not an exception to apportionment under CPLR article 16, but a savings provision that preserves the principles of vicarious liability.
Plaintiff Neville Rangolan was incarcerated at the Nassau County Correctional Center where he was seriously beaten by Steven King, a fellow inmate. Rangolan had cooperated as a confidential informant against King, and his inmate file cautioned that he was not to be housed with King. A corrections officer, however, failed to notice the warning and placed Rangolan and King in the same dormitory. Rangolan and his wife commenced this action against defendant Nassau County in Federal court, alleging, among other things, negligence for failure to protect Rangolan and violation of his Eighth Amendment rights under 42 USC § 1983. The United States District Court dismissed Rangolan's section 1983 claim, but granted his motion for judgment as a matter of law on his negligence claim and ordered a trial on damages. The District Court denied the County's request to instruct the jury on apportionment of damages between the County and King, concluding that CPLR 1602 (2)(iv) rendered apportionment under article 16 unavailable where the County's liability arose from a breach of a non-delegable duty.
The jury awarded Rangolan damages for past and future
pain and suffering, and also awarded damages to Rangolan's wife
for loss of services. On the County's motion, the Court ordered
a new trial on damages unless the Rangolans stipulated to a
reduced award. The Rangolans accepted the reduced award and both
parties appealed to the United States Court of Appeals for the
Second Circuit, which affirmed the dismissal of Rangolan's
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
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
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 - [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 
[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
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
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
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
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.