Products Liability Extreme Fault by Plaintiffs By Michael Hoenig - New York Law Journal - April 10, 2006	Print article

When a prospective, badly injured plaintiff is extremely blameworthy, the lawyer screening the facts for potential intake has some dilemmas.

Does he or she take the case knowing that, under New York's law of "pure" comparative fault (Civil Practice Law and Rules [CPLR] 1411), the jury likely will assign a high percentage of culpability to the claimant thereby proportionally diminishing any award? Does it pay to take such a case? Could the jury too easily transpose a case of high comparative fault into a defense verdict, making the lawyer's exercise entirely futile?

From the standpoint of the defense lawyer, when presented with a highly blameworthy plaintiff, does one ride with only the comparative fault defense or does one aim higher by asserting intervening and superseding causation, for example? What measure of extreme plaintiff's fault will knock out the claim, as opposed to presenting just another candidate for a comparative fault lottery? Should the defense lawyer ask for a jury instruction that the jury consider such a plaintiff's conduct as the sole proximate cause of his injury? Are there practical or legal consequences if such an instruction is not requested?

Soto v. New York City Transit Authority,¹ a March 23 decision by the Court of Appeals, stimulates such questions and tugs at you both ways. It is not just a plaintiff/defendant thing. From a gestalt standpoint there's something unsettling about Soto's factual scenario and the trial and appellate result. Our high court Judges must have sensed it too. They split four to three on issues of comparative fault and causation and expressed themselves in short, pithy and highly readable opinions. In the Appellate Division the Justices split as well, three to two.² That kind of fracture in the appellate panels tells readers that we are dealing here with noteworthy tensions.

In Soto an 18-year-old and three of his friends consumed alcohol in Manhattan and, in the early hours of the next morning, waited on an elevated subway platform for a train to return them to Queens. The group decided the train was not running and walked to the next station along the "catwalk" — a three-foot wide path abutting the train track. After an interval, they decided to walk similarly to the next station. The "El" tracks were to their left and a short railing was to their right. Before they reached the next station, the group realized that a train was approaching from behind. They began running along the catwalk hoping to reach the station before the train did so that they could go aboard.

Reckless Conduct

The teens ran in single file. Plaintiff was third in line and was struck at or near a signal box located on the catwalk. The evidence suggested that the lad attempted to avoid the box and came closer to the train. The injuries were severe, resulting in below-the-knee amputations. At trial plaintiff estimated his running speed and, based on that estimate, an expert said that the motorman had adequate time and distance to stop the train some 37 to 51 feet before reaching plaintiff. Defense motions at the close of plaintiff's case to dismiss the complaint for failure to state a cause of action and for directed verdict were eventually denied, as were all post-trial motions. The jury allocated 25 percent causal fault to defendant and 75 percent to plaintiff. By a 3-2 vote the Second Department affirmed. By a vote of 4-3 the Court of Appeals affirmed.

Let's be honest. First impression, regardless of whether one regularly represents plaintiffs or defendants, is, what were these teens doing, after a night of drinking, running on the narrow catwalk alongside the elevated train tracks between stations in the wee hours of the morning? Talk about comparative fault all you want, this clearly was extremely dangerous, reckless behavior. Although the Court doesn't discuss it, there had to be, at least potentially, some criminal law violations here. This was no childish gambit. It was big-time fault.

Any number of serious consequences might have resulted from such behavior besides injury to the teens. For example, had one of them fallen over the short railing onto the street, he could have landed on a car or caused a car to swerve injuring car occupants or pedestrians. Or, had the motorman seen the teens and stopped on a dime, perhaps some standing or seated occupants of the subway cars could have been thrown about disastrously. Thus, an elderly person with brittle bones could break a hip, become bedridden and never walk well again. A late-term pregnant occupant thrown to the floor might lose her baby. Train traffic on the line could be halted for hours inconveniencing passengers, causing lost time and wages for those going to work, and so on. That such consequences did not occur here is fortuitous. The running "catwalk" lads were not mere prankish teens. In one sense, they were ticking time bombs proceeding towards the proverbial explosion — either injury to themselves or to others.

By analogy, when the doctrine of primary assumption of the risk is applied, even though the plaintiff's injury did not result from a leisure or sporting activity, courts in some extreme-conduct situations have nevertheless precluded the plaintiff's recovery by relieving the defendants of any duty of care they may have owed the claimant. Thus, in Sy v. Kopet,³ plaintiff returned home to his second-floor boarding room in a two-family house and observed that a padlock had been placed on his door. The landlord took that action because plaintiff was months behind in paying his rent. Plaintiff then went out, climbed window guard rails and a gutter on the outside of the house and attempted to enter his room through a second-story window. The obvious risk eventuated. He slipped and fell. That risk was deemed to have been assumed. Defendants were entitled to summary judgment. And in Belloro v. Chicoma,⁴ the plaintiff also was held to have assumed the risk of injury in attempting to enter his room through the second-story window by climbing a ladder that was placed on top of another ladder.

Elevated Risks

In Westerville v. Cornell University,⁵ a mental health care professional injured her left knee while being trained by another program attendee during a practice session designed to teach physical restraint techniques to control agitated patients. Plaintiff's lawsuit was barred by her assumption of the risk because, when there is an elevated risk of danger, there is a kind of tacit consent to injury-causing events which are known, apparent or reasonably foreseeable consequences of participation in the risky activity. Thus, in Davis v. Kellenberg Memorial Hospital,⁶ a high school student, waiting after school for his mother, joined other students standing on top of a concrete bench and rocking it by shifting their weight. The injured plaintiff tried to dismount the bench as it was rocking. It toppled over catching his foot. The Second Department held the lad assumed the risk inherent in his horseplay and defendant was entitled to judgment as a matter of law.

In Conroy v. Marmon Enterprises, Inc.,⁷ the plaintiff stood on a forklift as it traveled over a speed bump with a gap in it for drainage. Plaintiff fell. By standing on the forklift for his convenience, he was held to have assumed the risk of injury. The court affirmed the trial court's dismissal of the complaint. Similarly, in Bennett v. Town of Brookhaven,⁸ the injured plaintiff stood on a boat which was on a trailer being pulled over the launching ramp out of the water by his friend's Jeep. He fell. By choosing to remain in the moving, rocking boat and remain standing, plaintiff was held to have assumed the risk.

In the foregoing assumption-of-risk settings, the liability-precluded plaintiffs seemingly engaged in far less risky behavior than the four teens running, after a night of drinking, on a narrow catwalk between elevated train stations where the risk of being struck by a train is quite obvious. Thus, imposing liability in Soto could be somewhat disturbing to many. The Court of Appeals Judges know all this so what really is behind the majority's affirmance of a judgment finding the Transit Authority 25 percent liable to a highly risky teenager? And why did three dissenting Judges part company with the four? What was the battle over?

First, let's clarify. Soto appears not to have been an assumption of risk case of the dispositive kind. The defense seems, at least from the opinions, not to have been pleaded. The Court is bound by the shape of the case before it. The advocates largely determine the contours of claims and defenses. This writer's reference to dispositive assumption of risk cases was simply an exercise to compare the apparent level of potential risk demonstrated by the elevated catwalk-runners to other risky behavior courts often hold a bar to recovery.

Parsed Analysis

This writer believes the Court majority may have seen itself bound by a series of case circumstances which, when parsed and analyzed, tended towards respecting the jury's verdict. The end result may not be satisfying on a scale of popularity but it can be rationalized the way the case was pleaded, tried, and jury-instructed. As this writer sees it, the majority looked closely at the sufficiency of the evidence of motorman negligence presented by plaintiff; at the reliability of plaintiff's expert testimony in creating an issue of fact; at inconsistencies in the motorman's versions of his own conduct; at the defendant's claim that only one conclusion could be reached about who was responsible for the accident; at the defendant's limited requests for jury instructions; and at the reasonableness of the comparative fault calculation made by the jury. When parsed, each of these factors revealed factual questions appropriate for jury determination.

Consider, for example, the majority's hints at possible shackles on its exercise of discretion here. Did the jury verdict rest on legally insufficient evidence? Was there "simply no valid line of reasoning and permissible inferences which could lead rational individuals to the conclusion reached by the jury on the basis of the evidence presented at trial"? Similar to a directed verdict question presented to the trial judge, if there is a question of fact and it would not be "utterly irrational" for a jury to reach its result, the Court may not conclude as a matter of law that the verdict is not supported by the evidence.⁹ Consider similarly the majority's rejoinder to defendant's argument that plaintiff's reckless conduct was the sole proximate cause of his injury. The Court said, "[s]ignificantly, the NYCTA did not request any instruction that the jury consider whether plaintiff's conduct was the sole proximate cause of his injuries. Neither did defendant request a jury charge on superseding or intervening cause. Rather, the jury was instructed that plaintiff's negligence was a substantial factor in causing the accident, and was asked to determine further whether NYCTA was also negligent, whether that negligence was a contributing factor to plaintiff's accident and the percentage of fault attributable to each party."¹⁰ In other words, the requested jury instructions limited the issues.

Or consider the majority's conclusion that "it was not irrational for the jury to find NYCTA negligent." The jury's decision that the train operator could have avoided this accident was an "affirmed finding of fact" [by the Appellate Division majority] "with support in the record and is beyond our further review." Further, plaintiff's conduct was not such an unforeseeable or superseding event as to break the causal connection between the injury and defendant's negligence.¹¹ The expert testimony, based upon plaintiff's estimate of his running speed, was deemed reliable enough to have the jury evaluate the proofs. It cannot be said, concluded the Court, that the jury's determination was "utterly irrational."

By its stated analysis, hints and use of judicial code words, the majority seems, in effect, to be saying that the state of the case presented, when parsed, compels the verdict to be upheld. The plaintiff's extreme misconduct is concededly troublesome baggage but, nevertheless, presents a jury question. "Plaintiff's conduct was undeniably reckless, but the jury appropriately considered plaintiff's actions and determined that he bore a far greater share of the fault. This is in keeping with the doctrine of comparative fault (see CPLR 1411)."

Dissenting View

The three-Judge dissent slashes through the "institutional" constraints seemingly dogging the majority. Granted CPLR 1411 is the general rule where a plaintiff's own fault will not bar the claim but only be a ground for apportioning fault. However, established precedents have recognized that a plaintiff's fault may be "so egregious" in comparison to defendant's that it "supersedes defendant's conduct" and becomes the "sole legal cause" or "sole proximate cause." The facts of this case bring it within the superseding cause doctrine.

Why? Because plaintiff here was reckless twice. It was "very foolish for him and his companions to choose a narrow catwalk next to the subway tracks for pedestrian travel. But plaintiff would have escaped unharmed if he and the others, when they heard a train coming, had done what minimal common sense would require — stand still, as far as they could get from the tracks, and let the train pass by. Instead, they chose to race the train to the next station." On these facts, say the dissenting Judges, "it is fair to say that plaintiff's injuries were entirely his own fault, even if a non-negligent motorman might have been able to stop the train in time to avoid the accident."¹²

Citing precedents barring recovery, the dissenters say that in each case, "it is clear that the extraordinary degree of the plaintiff's fault — not just the foreseeability of the plaintiff's conduct — has been decisive." A pure foreseeability analysis does not explain the cases. The dissenters would "not hesitate" to uphold an award had plaintiff been pushed by someone else into the path of the train, rather than recklessly placing himself there, though there is not much difference in the foreseeability of the two events. The principle should be that "people whose failure to take care of themselves is extreme may not shift any of the consequences to others." Although plaintiff's injury was tragic and invites sympathy, the defendant's motion for a directed verdict should have been granted on the ground that plaintiff's reckless conduct was the sole legal cause of the accident.

Conclusion

The analytical tensions among the Judges in the Court of Appeals and the Appellate Division perhaps represent a battle not just over this one case. In effect, there may be a "dirty little war," to borrow a phrase, about exactly where CPLR 1411's comparative fault scheme will, or should, reach. Does it extend to every nook and cranny of the plaintiffs' fault spectrum? Or, is there an area of extreme, reckless, risky and dangerous plaintiffs' misconduct that supersedes perceived negligence on the part of a defendant? The Soto case well reflects the keen tensions but does not dispose of them for other scenarios.

Policy concerns lurk in the shadows here. Tort law is not only a compensation scheme. It is also a mechanism to foster deterrence of misconduct. How does deterrence play out here? Has teen recklessness been deterred because the jury award was only 25 percent of the computed damages? Or have adventurous lawyers been encouraged to file suit whenever a serious injury occurs regardless of the plaintiff's extreme misbehavior? And, ultimately, who must pay for such awards? These and other related issues are too large and polycentric to answer here. One lesson to be learned, however, is that advocacy can help shape the issues better. In extreme fault cases, counsel should seek jury instructions on sole proximate cause and superseding and intervening cause.

Michael Hoenig is a member of Herzfeld & Rubin.