Each year the Court of Appeals has the opportunity to grapple with issues in the area of negligence. This article discusses many of the Court's most significant 1992 decisions. Decisions in the area of labor law injury claims, limitations on actions, contribution amongst joint tortfeasors, liability of municipalities and an analysis of conflict of laws are issues which have been addressed this past year. This article also features the author's commentary on the apparent trends and policy considerations that led the Court's opinions and may, to some extent, foreshadow the Court's decisions in 1994.

In Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, plaintiffs had insulation installed at their home by defendant Town Insulation. The insulation was blown into the walls of the house and plaintiffs alleged that they began to experience respiratory problems and other symptoms of physical illness "about the date of installation." About four years later, the Federal Government banned the sale of ureaformaldehyde foam insulation because of health hazards associated with formaldehyde emissions which were present in the air inside plaintiffs' home. Holding that accrual under CPLR § 214 is measured from the date of injury, which in this case admittedly was "about the date of installation," this case was time barred. The Court stated that an action to recover damages for personal injury must be commenced within three years from the date of accrual and the cause of action does not accrue until an injury is sustained, when all elements of the tort can be truthfully alleged (citing Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287).

Importantly, the Court took the opportunity to clarify the so called "date of last exposure" rule. Since one of the plaintiffs still resided in the house and the insulation has not been removed from the dwelling, such a rule in this case would require the conclusion that the action has not yet accrued. It would permit a plaintiff to put off the running of the statute of limitations indefinitely. Plaintiffs conceded that the discovery rule provided by CPLR 214-c should not apply retroactively.

Again in Kronos Inc. v. AVX Corporation, 81 N.Y.2d 90, the Court had the opportunity to articulate the date of injury standard. In Kronos, however, this standard had the effect of reviving an action which had been dismissed by the Appellate Division. Plaintiff had alleged that the defendant had tortiously induced the breach of its contract with another, but since the Court held that the action did not accrue when the contract was breached in 1984, but rather when plaintiff alleged that it first suffered actual damages as a result of the tortious conduct, which was in 1988. Since there was no cause of action until there was an injury in 1988, the statute of limitations could not start to run and the action brought in 1991 was therefore timely.

The Court's holding was determined by the fact that this was not an action sounding in contract but rather one sounding in tort, and, as a general proposition a tort cause of action cannot accrue until an injury is sustained. Since this was a tort action, the Court refused to apply the well established rule of contract law that the law will infer at least nominal damages at the moment of breach; it was "actual damages" which were determinative.

Sometimes awareness of an injury may come too late for even the most diligent of plaintiffs. In Rockefeller v. Moront, 81 N.Y.2d 560, plaintiff had hernia repair surgery at age four. Seventeen years later, when plaintiff's wife was unable to conceive it was discovered that a misplaced suture on plaintiff's vas deferens caused irreversible sterility. Applying a "discovery rule" plaintiff's action would be viable, delaying the running of the statute of limitations. But this medical malpractice action was time barred. Both CPLR 214-a and the case law prior to that statute exclude from the "foreign object" rule "fixation devices." Regardless of when the claim arose, suture material is a fixation device which was intentionally placed in the body and not left there in the course of some procedure in which it should have been removed. As such it does not constitute a foreign object for the purposes of New York's "foreign object" exception. The Court realized that the result was harsh to this plaintiff who could not, and did not, discover the malpractice until seventeen years later, but noted that the "foreign object" exception must be narrowly construed.

The Court also noted that sutures have been consistently characterized as fixation devices because they are deliberately introduced into the body and intended to perform the continuing function of securing the surgical closure unlike surgical clamps, scalpels and sponges which are introduced into the patient's body to serve a temporary medical function, but are normally intended to be removed. The Court further reasoned that the policy behind the foreign object exception is evidentiary; no assessment of the medical professional's expert judgment or discretion in failing to remove them is necessary to establish negligence. Negligent medical treatment, like misdiagnosis, is a category of malpractice not covered by the "foreign object" rule. In such circumstances the trier of fact must assess whether the defendant physician's diagnostic methods and conclusions were consistent with contemporary professional standards of care. This is unnecessary with a foreign object which can justify litigation many years later. Consistent with this policy is the Court's earlier rejection of the argument that the negligent failure to remove a "fixation device" from a patient's body transforms that material into a "foreign object" (see Rodriguez v. Manhattan Med. Group, 77 N.Y.2d 217).

Once again the Court has been asked to clarify '240(1) of the Labor Law. Less than two years prior, the Court held in Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509 that a plaintiff could assert a cause of action under Labor Law '240(1) because he had been exposed to an "elevation-related risk" arising from the inadequacy of the protective device with which he had been supplied. Now in Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, the Court further clarifies that such elevation risks "do not encompass any and all perils that may be connected in some tangential way with the effects of gravity" id. at 501. Section 240(1) hazards are limited to specific gravity-related accidents such as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured. In Ross plaintiff's injury was back strain by having to position his body on an elevated platform in order to accomplish his task. After working from the platform for some two and one-half hours, plaintiff experienced difficulty and pain when he attempted to straighten his back. Unable to stand up straight, he was forced to crawl off the platform. He required back surgery and remains disabled. The Court concluded that this injury is not the kind of harm that is typically associated with elevation-related hazards under Labor Law '240(1). The scaffold device served the objective of this section by preventing plaintiff from falling down the shaft.

The Court also held that plaintiff may not recover under '241(6) because plaintiff's allegations were too general to give rise to the nonindelegable duty under this statute. But Labor Law '200(1) may be available.

The plaintiffs in both Stolt v. General Foods Corporation, 81 N.Y.2d 918 and Hagins v. State of New York, 81 N.Y.2d 921, both injured themselves in a fall and had viable Labor Law '240(1) claims. Defendants in both these cases attempted to rely on the "recalcitrant worker" defense. That defense requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer. The Court held that such a defense did not apply in either case. Stolt involved a broken ladder in which plaintiff had been instructed not to climb unless someone else was there to secure it for him. Plaintiff attempted to climb the ladder without assistance or supervision. The Court held that the mere allegation that plaintiff had disobeyed his supervisor's instructions was no basis for a defense. The Court also noted that contributory negligence is not a defense to a claim based on '240(1) and the plaintiff's culpability does not reduce liability for failing to provide adequate safety devices. In this case plaintiff's injuries were a direct result of the defendant's failure to supply a safe ladder and plaintiff's actions were not a supervening cause.

Similarly in Hagins the defendant's allegations that the plaintiff had been repeatedly told not to walk across a certain abutment was not a basis for a defense for similar reasons.

Apportioning liability in multi-defendant lawsuits when some defendants have settled prior to trial can give rise to various computation methods yielding different results. The import of the Court's decision in Williams v. Niske, 81 N.Y.2d 437, is that the preferred method of calculation is the one that yields a result most consistent with the general purpose of General Obligations Law § 15-108. That statute was intended to encourage settlements, but also to assure that a non-settling defendant does not pay more than its equitable share. As the Court stated, "in the end, it will be up to the Courts to determine the method of verdict reduction which best promotes the statute's broad objectives" (id. at 444, citing the Appellate Division's decision).

In Williams four defendants settled before trial (with no apportionment by the jury), one defendant settled during trial (with an apportionment of liability by the jury), one defendant entered into a high-low agreement and another defendant went to verdict without settlement. On appeal at least three different methods of calculation were suggested. Depending on which calculation was chosen, the non-settling defendant's proportionate share of liability ranged from $10,000 to $910,000 where the jury returned a verdict of $2.6 million. The Court chose the method which required the non-settling defendant to pay $595,000, which was not more than its equitable share and which gave plaintiff a maximum recovery of $1,695,000.00, albeit significantly less than the jury's verdict.

The Court agreed with the Appellate Division's method of first subtracting the pre-trial settlement amounts from the verdict and then distributing the remainder among the trial defendants according to their share of fault. The Court reiterated the usual rule that where the settlement figure is below the settlement defendant's equitable share, the non-settling defendants pay only their equitable share of the verdict. If the settlement exceeds the settling defendant's equitable share, the non-settling defendants pay only the difference between the settlement and the verdict, equitably apportioned among them. If the settlement exceeds the verdict, the non-settling defendants have no liability at all.

The Court reiterated that the common law rule, that there is no right to contribution from defendants who settle, still applies. Thus there is further inducement to settle since defendants who settle are not only released from liability but are also free from contribution claims by other defendants. But by limiting liability the settlor also forfeits any right to contribution from any other defendant. This last purpose of § 15-108 was the guiding principle in the Court's opinion in Gonzales v. Armac Industries, Ltd., 81 N.Y.2d 1. The question was whether a settlement entered into before trial, but to be paid after verdict since it agreed to pay 2% of any damages a jury might award, was a release from liability within the statute such that defendant forfeited any right to contribution. Since post-judgment settlements permit the settling defendant to seek contribution, defendant Armac preferred to characterize payment of settlement and determination of the amount of settlement as a post-judgment settlement. But the Court found the difference in stipulating to a dollar amount or a percentage of damages to be without significance since in both cases the defendant is attempting to limit its liability and must make the sacrifice of forfeiting any right to contribution.

As can be seen from the above, the laws of contribution can have a significant impact on litigation. In Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66, the issue involved a conflict in the law of contribution claims against an employer between a Missouri statute and that of New York. Although the case was tried in New York, the Court concluded that the Missouri Workers' Compensation Statute should be given effect, thereby dismissing the third-party complaint seeking contribution against a Missouri employer. Judge Kaye gave a thorough analysis, applying the relevant choice of law principles to reach the conclusion in this case. In any such analysis considerations may be given to the domicile of the parties, the place of the tort, a determination of whether New York has sufficient interest in the litigation, a need for greater predictability and uniformity to the law, considerations to reduce opportunities for forum shopping by the litigants, the expectation of the parties so that people may be aware of their potential future liability over circumstances and situations in which they may have control, and public policy considerations of the two States' laws. The Court examined the traditional approach, and "interest analysis" which distinguished between laws that regulate conduct and those that allocate losses after the tort occurs (such as the issue of contribution in this case) and the Neumeier Rules. Judge Kaye's analysis is required reading for any litigant with a similar problem.

In this case ultimately the Court applied Neumeier's second rule which applies when each litigant is from a different domicile and when the local law of each litigant's domicile favors that party, the law of the place of injury should govern. Here the injury occurred during the course of plaintiff's employment in Missouri and hence the New York defendant machine manufacturer may not seek contribution from the plaintiff's Missouri employer despite the fact that New York law allows such contribution claims. The Court also found, however, that applying this rule was also consistent with the protection of reasonable expectations of the parties since the employer could hardly have expected to be called before a New York court to respond in damages for an accident to a Missouri employee at his Missouri plant. By contrast, the defendant manufacturer could not have expected that contribution would be available in products liability arising out of the sale of industrial equipment. Moreover, the Court noted that the law of contribution is not foolproof (as can be seen above). A defendant may not be able to obtain jurisdiction over a joint tortfeasor or the joint tortfeasor may be insolvent. It would be difficult to extract a single principle from the Court's opinion here; rather all relevant choice of law principles were considered and applied to the specific facts of this case. See also Allstate Insurance Company v. Stolarz, 81 N.Y.2d 219.

In Kleeman v. Rheingold, 81 N.Y.2d 270, the Court held that attorneys have a non-delegable duty to their clients to affect timely and accurate service of process in commencing a client's lawsuit. An attorney will not avoid liability for negligent service of process where the task has been "farmed out" to an independent contractor. Even though a process server is generally an independent contractor and in such situations the attorney does not have control over the manner in which the task is performed, the Court held that this case was an "exception" in that this is a non-delegable duty. Such a conclusion ultimately rests on policy considerations. "[W]hen an individual retains an attorney to commence an action, timely and accurate service of process is an integral part of the task that the attorney undertakes" (citations omitted) id. at 275. In such a situation the client has "reasonable expectations and beliefs" that the attorney will render this particular service which is a "particularly critical component" in the commencing of the client's lawsuit. Since only licensed attorneys have "an exclusive franchise to practice law," the liability for negligent failure to achieve proper service must rest with licensed attorneys who "alone have the necessary knowledge and experience to protect their client's rights" id. at 277. For these reasons the Court held that the attorney has a non-delegable duty to the client to exercise due care in the service of process.

In Cooper v. City of New York, 81 N.Y.2d 584, (1993), the Court of Appeals attempted to clarify the scope and the application of the so-called "fireman's rule". Prior to Cooper, the Court of Appeals held in Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812 (1988) that the "fireman's rule" precluded both police officers and fire fighters who were injured in the line of duty from recovering "damages for negligence in the very situations that create the occasion for their services". See Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812 (1988). The Court explained that this rule was grounded on (1) the public policy that "firefighters trained and compensated to confront such dangers must be precluded from recovering damages for the very situations that create a need for their services", and (2) assumption of the risk principles.

In response to Santangelo, the Appellate Divisions tried to carve out a "separate and distinct exception" to the "fireman's rule". The Appellate Division concluded that the application of Santangelo should depend on "the degree of separation between the negligent act directly causing the injury and the act which occasioned the police officer's [or firefighter's] services. See Starkey v. Trancamp Contracting Corp., 152 A.D.2d 358, 548 N.Y.S.2d 722 (2nd Dept. 1989). In Starkey, for example, the Appellate Division refused to apply Santangelo because the injury sustained by a police officer from a defective condition at a construction site was separate and apart from the reason that the police officer was called to the site in the first place.

The Court of Appeals in Cooper declined to recognize this "separate and distinct" exception. The Court explained that to carve out such a "separate and distinct exception would be inconsistent with the rationale of Santangelo." Rather, the Court stated that the "determinative factor is whether the injury sustained is related to the particular dangers which police officers [or firefighters] are expected to assume as part of their duties. ... What matters is the connection between plaintiff's injury and the special hazard that plaintiff assumed as part of her ... duties." Cooper, at 590-591.

Plaintiff in Cooper was injured in an automobile accident while a passenger in a police car responding to an emergency call. Plaintiff alleged that the police officer driving the vehicle was negligent. The Court held that responding to an emergency entails risks that are clearly inherent in police duties. The Court also held that the "Santangelo rule" applies irrespective of whether the special hazards that they are expected to assume flow from the negligence of a third party or from a fellow employee. The "Santangelo rule" will preclude recovery for the negligence of a fellow employee only if the injury is related to the particular dangers that are associated with a firefighter's or police officer's functions.

In Nowlin v. City of New York, 81 N.Y. 2d 81 the Court held that the City was not relieved of liability to keep its roadways safe even though the roadway had been owned by the State pursuant to Article XII-B of the Highway Law. This Article empowers the State to retain ownership of roads to perform reconstruction. After the reconstruction the State must return its "jurisdiction" of the roadway to the City. In this case the State attained ownership of the Henry Hudson Parkway due to reconstruction under Article XII-B. Under the statute, however, the State retains continuing maintenance responsibility for the highway it constructed or reconstructed.

On the date of plaintiff's accident, the City had jurisdiction over the Henry Hudson Parkway but the State retained certain maintenance responsibilities. The Court held that this Article did not relieve the City of its obligation to keep the parkway within its jurisdiction safe.

The City also acknowledged that it actually planned the location of new signs and then placed those signs. "Once a municipality undertakes a duty, it must of course perform that duty in a non-negligent manner" id. at 88. In fact the negligent placement of these signs created a dangerous traffic condition which the jury found was a proximate cause of plaintiff's injury. This is consistent with the rule that a municipality has a duty to maintain its streets in a reasonably safe condition.

The plaintiff in Jacqueline S. v. City of New York, 81 N.Y.2d 288, was raped by an assailant inside her apartment building. The plaintiff alleged breach by the Housing Authority of a common law duty to provide adequate security. The fact that the defendant showed that in a referendum vote held pursuant to Multiple Dwelling Law § 50-a(3) regarding installation of self-closing, self-locking doors and an intercommunication system, the majority of the tenants rejected the plan did not relieve the defendant of its duty. There is nothing in the statute to "suggest that its terms supersede common law duties and obligations such that a negative vote of the tenants relieves a landlord from any obligation to install security devices" id. at 293. The Court held that the landlord must still satisfy the common law duty to take minimal precautions to protect his tenants from foreseeable harm.

The Court further held that to establish the foreseeable danger from criminal activity necessary for liability, all that is required is that past experience must make foreseeable the likelihood of conduct which would endanger the safety of the plaintiff. "[T]he past experience relied on to establish foreseeability [need not] be of criminal activity at the exact location where plaintiff was harmed or [need not] be of the same type of criminal conduct to which plaintiff was subjected" id. at 294. The Court found that evidence of drug related criminal activity, vagrants and drug addicts loitering in the corridors, stairwells and roof of the building, as well as numerous reports of forcible rapes at neighboring buildings was sufficient.