An Apportionment Problem

Artibee v Home Place Corp.,

___ AD3d ___, ___ NYS3d ___, 2015 NY Slip Op 06556

Our supposedly Unified Court System is in fact notoriously fractured, with many courts of limited jurisdiction. This sometimes creates wholly unnecessary difficulties, and this case is one of them.

There were two joint tortfeasors involved in plaintiff’s accident, but because one of them was the State, plaintiff could not sue them both in the same court. The action against the State had to be brought separately in the Court of Claims. This is not only expensive for plaintiff, with obvious dangers of inconsistent verdicts, but presents the problem of apportioning fault between the tortfeasors. The problem is interesting as a technical exercise, perhaps, but the court system we have allows no good result. It would not arise if there were a single-tier trial court.

The plaintiff was driving on a state highway and was injured by a tree limb falling from the property of the present defendant. Plaintiff alleged that the State was also liable, for failing to maintain the trees adjoining the highway. Plaintiff was forced to commence parallel actions, suing the tree owner in Supreme Court, and the State in the Court of Claims. The tree owner claimed the benefits of Article 16 limited liability but this requires an apportionment between the tortfeasors. How is this to be accomplished if they are not joined in one action?

CPLR Article 16 is intended to ameliorate the rule of joint and several liability as to a tortfeasor responsible for 50% or less of the injured plaintiff’s non-economic damages. As to these, the tortfeasor is liable only for his proportionate share of the non-economic damages. Hence, the necessity of an apportionment. If all tortfeasors are joined, this is straightforward. If they are not all joined because the plaintiff is unable to obtain personal jurisdiction over one of them, that tortfeasor’s share of liability falls on the sued defendant. If jurisdiction could have been obtained over the missing tortfeasor, the sued defendant can try to lay off liability against the “empty chair,” and so limit its liability, at least for non-economic damages.

Here, however, the problem is not obtaining jurisdiction over the State, it is that the State is statutorily precluded from being sued in the same court as the tree owner. The plaintiff must make its claim against the State in the Court of Claims, and the tree owner, assuming it is found liable to the plaintiff in Supreme Court, is relegated to the status of an additional claimant in the plaintiff’s action, looking for indemnification to the extent it is entitled to the benefits of Article 16. The exercise will be pointless, however, unless the tree owner is found 50% or less at fault.

The defendant tree owner here sought an order in limine in Supreme Court, seeking to allow proof of the State’s liability in Supreme Court, and also to have the Supreme Court jury make an apportionment of liability between it and the State. Supreme Court granted the defendant some relief, in the form of allowing proof of the State’s liability, but denying the apportionment. The Third Department held that the apportionment should have been allowed as well. The court held that allowing the apportionment would prevent the entire weight of liability from falling on the tree owner, while “as a policy matter, prohibiting a jury from apportioning fault would seem to penalize a defendant for failing to implead a party that, as a matter of law, it cannot implead.”

The court conceded the possibility of inconsistent verdicts, but noted that this will be so whether or not there is an apportionment in Supreme Court.

Thus, as the partially dissenting Justice noted, there will be an empty chair in the Supreme Court action, with the tree owner laying off as much liability against the State as it can. If it is successful in establishing to the satisfaction of the Supreme Court jury that it was liable for 50% or less of the total fault, it will have successfully limited its liability to the plaintiff for non-economic damages. Yet, none of this verdict will be binding in the Court of Claims.

I observe, paraphrasing the majority, that this seems to penalize the plaintiff for failing to join a party that, as a matter of law, he cannot join.

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