Wade Clark Mulcahy LLP

When a plaintiff files a motion for summary judgment on liability seeking also to dismiss the defendant’s affirmative defense of comparative negligence, counsel must be mindful of shifting standards. The parameters for what are validly considered when ruling on a motion for summary judgement on the issue of liability do not necessarily require that a plaintiff be completely free from all fault. Contrastingly, when deciding on a defendant’s comparative negligence affirmative defense to a summary judgement motion, those applicable parameters are widened to consider the plaintiff’s own conduct.

For example, in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/05/Acevedo-v.-CKF-Produce-Corp.pdf">Acevedo v. CKF Produce Corp.</a>,</em> 2023 NY Slip Op 02633 (2d Dep’t May 17, 2023), an incident occurred when the plaintiff was injured after being hit by a forklift in the road near the Brooklyn Terminal Market. The plaintiff filed a lawsuit against the forklift operator and the operator’s employer/forklift owner. In attempting to raise a triable issue of fact to oppose the plaintiff’s motion for summary judgement, the defendant produced an affidavit from the forklift driver describing the accident. The court was unpersuaded because the affidavit failed to sufficiently explain why he was unable to stop the moving forklift prior to contact with the plaintiff.

The lower court granted summary judgement on A) liability against the defendant, and B) dismissed the defendant’s affirmative defense of comparative negligence. The Second Department vacated the dismissal of the defendant’s affirmative defense.

The Appellate Division based its decision, in part, on the distinction that while a plaintiff is not required to establish freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff seeks summary judgment dismissing an affirmative defense alleging comparative negligence.

The Second Department explained that the plaintiff failed to establish that he exercised due care prior to the accident to a high enough degree to absolve him of any blame. The plaintiff’s supporting materials were not explicit enough to eliminate the possibility that he failed to keep a proper look out when he stepped into the road while carrying boxes of food on his shoulder. Normally this distinction wouldn’t be as impactful in mere liability terms, but the added affirmative defense of comparative negligence allows the plaintiff’s actions to come into relevance.

Thanks to Alex Rabhan for his contribution to this article. Should you have any questions, please contact <a href="agibbs@wcmlaw.com">Andrew Gibbs</a>.