Recently, in Chianese v. Werner Meier and Mautner-Glick Corporation,¹ the Court of Appeals resolved an issue which has split the Appellate Division for years. ² In a unanimous opinion, the Court of Appeals concluded that apportionment of damages for personal injuries is permissible between a negligent and nonparty intentional tortfeasor. ³

Plaintiff, in her application for post-trial relief, argued that the trial court erred when it allowed the jury to consider the apportionment of liability between Adger and the defendants. On appeal to the Appellate Division, the First Department affirmed based upon the notion that apportionment of liability under CPLR article 16 was not available with non-party intentional tortfeasors.⁴ Significantly, the majority's opinion was antithetical to the conclusion reached not only by the dissent but by two other First Department panels which considered the issue that same day. ⁵ In their dissents, Justices Wallach and Rubin agreed with defendants' position, concluding that apportionment should be permitted under the hybrid circumstances presented.⁶

CPLR 1602(5)

Enacted in 1986, CPLR article 16 modified the traditional rule of joint and several liability by limiting a joint tortfeasor's liability in certain circumstances.⁷ Under the traditional rule, each tortfeasor is jointly and severally liable to the plaintiff for the full amount of plaintiff's damages regardless of each tortfeasor's degree of culpability. Under article 16, however, a personal injury defendant whose pro rata share of fault is 50% or less is liable for the plaintiff's non-economic loss only to the extent of that tortfeasor's relative culpability. The limitations on tort liability, however, are inapplicable when any of the exemptions delineated in either CPLR 1601(1) or 1602 apply. Relevant here is CPLR 1602(5) which excepts "actions requiring proof of intent." Although it was unquestionable that this exception applied to prevent intentional tortfeasors from invoking the benefits of apportionment, it had been unclear whether this exception applied in the hybrid situation presented here, where a negligent defendant seeks to apportion liability with a nonparty intentional tortfeasor.

Plain Language And Legislative History

Relying upon its plain meaning and legislative history, the Court of Appeals concluded that CPLR 1602(5) does not preclude apportionment of liability between a negligent and nonparty intentional tortfeasor. Plaintiff's complaint asserts only causes of action to recover damages for negligence which do not require proof of intent. "Because plaintiff's negligence claim is not an 'action requiring proof of intent,' section 1602(5) on its face does not apply to preclude apportionment of liability. To prove her case, plaintiff had only to show that she was injured as a result of the defendants' failure to provide adequate security on their premises. That a nonparty tortfeasor acted intentionally does not bring a pure negligence action within the scope of the exclusion." ⁸

This approach retains the policy of denying the benefits of apportionment to intentional tortfeasors, and still honors the intent of the statute to require negligent actors to pay only in proportion to fault. Otherwise, the Court of Appeals noted, "the right of a low-fault defendant to apportion would depend entirely on the nature of the culpability of the third-party tortfeasor. A negligent defendant could apportion liability with a negligent or reckless third-party tortfeasor, but not an intentional tortfeasor (citation omitted). Such a result is not only inconsistent but also inconsistent with the chief remedial purpose of article 16." ⁹

When removed from the context of premises security, it is clear that precluding a negligent tortfeasor from seeking apportionment with an intentional tortfeasor does not serve public policy. Focusing solely upon the acts of criminal perpetrators who take advantage of negligently maintained entrances overlooks the inequity that would result in other circumstances by precluding a negligent party from seeking apportionment of liability with a nonparty intentional tortfeasor.

Although an intentional tortfeasor's high degree of culpability justifies his exclusion from the benefits of apportionment, the purpose of CPLR article 16 is to limit a low-fault negligent defendant's liability to its proportionate fault share of the total damages. Indeed, it is difficult to imagine a scenario where it more likely that a deep pocket negligent defendant will be exposed to a disproportionate liability than when a plaintiff fails to bring suit against a joint intentional tortfeasor.

The Overall Effect of 'Chianese'

Although Chianese has the direct result of permitting apportionment in the instant action, its overall impact on tort law is far broader. In particular, the Court of Appeals has greatly affected the course of litigation since the potential for apportionment most certainly has an affect on an insurer's settlement and trial strategy. With a limited opportunity for full recovery, a plaintiff's demand no longer has the same bite. Most certainly, a named defendant will make a strong effort to emphasize the blame of the nonparty intentional tortfeasor at trial. Moreover, the incentive to provide reasonable security is fostered by the prospect that a premises owner will not be held jointly and severally liable if the jury concludes that its proportionate share of fault is 50% or less. Finally, the reasoning in Chianese provides further insight into the Court of Appeals' viewpoint on article 16 and its potential treatment of other enumerated exceptions.

1. Chianese v. Werner Meier and Mautner-Glick Corporation, ___ N.Y.2d ___, ___ N.E.2d ___, ___ N.Y.S.2d ___, 2002 WL 1291324 (June 13, 2002).
2. Pantages v. L.G. Airport Hotel Associates., Inc., 187 A.D.2d 273 [1st Dept. 1992]; Siler v. 146 Montague Associates, 228 A.D.2d 33 [2nd Dept. 1997]; Brewster v. Prince Apartments, 264 A.D.2d 611 [1st Dept. 1999].
3. Chianese v. Werner Meier and Mautner-Glick Corporation, ___ N.Y.2d ___, ___ N.E.2d ___, ___ N.Y.S.2d ___, 2002 WL 1291324 (June 13, 2002).
4. Chianese v. Werner Meier and Mautner-Glick Corporation, 285 A.D.2d 315 [1st Dept. 2001].
5. Roseboro v. New York City Transit Authority, 286 A.D.2d 222 [1st Dept. 2001]; Concepcion v. New York City Health & Hospitals Corp., 284 A.D.2d 37 [1st Dept. 2001].
6. Chianese v. Werner Meier and Mautner-Glick Corporation, 285 A.D.2d 315, 325 [1st Dept. 2001].
7. L. 1986, ch. 682.
8. Chianese v. Werner Meier and Mautner-Glick Corporation, ___ N.Y.2d ___, ___ N.E.2d ___, ___ N.Y.S.2d ___, 2002 WL 1291324 (June 13, 2002).
9. Id.