Fighting Back Post-Rodriguez (Rodriguez v. City of New York, 31 N.Y.3d 312, 320 (2018))

Written by Briggs Johnson

Since the Court of Appeals case in Rodriguez v. City of New York, 31 N.Y.3d 312, 320 (2018) (where the Court held that a plaintiff need not demonstrate his or her freedom from comparative negligence to win summary judgment on liability), we have found that some plaintiffs believe that when they have evidence of a defendant’s negligence, then plaintiff’s comparative fault is irrelevant no matter what.  We have also found plaintiffs taking this position even if all that remains is a damages only trial.  We can safely assume that some of our friends in the defense industry have been encountering the same problems in New York.  Worse yet, we have found that some trial judges agree with this position, or that this issue is not being properly addressed before trial.  We have some solutions.

What we try to do here at GVK is to address this issue head-on at the summary judgment stage by opposing or cross-moving against plaintiff, where appropriate: to have a finding that there is an issue of fact on whether plaintiff’s (or another party’s) own actions were the only or sole proximate cause of the accident (which necessarily means there is an issue of fact on whether our client’s negligence caused the accident); or, in the alternative, for a finding that comparative fault must be considered in the damages trial as mitigation device even if plaintiff’s negligence cannot be construed as the only cause of the accident (for example, Labow Law 240(1), where comparative negligence is irrelevant on liability).

And we have the case law to support both positions, which we will readily provide upon request.  As always, please feel free to reach out to us with any questions on this or any other issues that may arise, and that we might be able to assist you with.