Akins v. Glens Falls City School Dist.

• Decision Date: 26 June 1980
• Parties: Robin AKINS, Respondent-Appellant, v. GLENS FALLS CITY SCHOOL DISTRICT, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 467

429 N.Y.S.2d 467

75 A.D.2d 239

Robin AKINS, Respondent-Appellant, v. GLENS FALLS CITY SCHOOL DISTRICT, Appellant-Respondent.

Supreme Court, Appellate Division, Third Department.

June 26, 1980.

La Pann, Reardon, FitzGerald & Firth, Glens Falls (Peter D. FitzGerald, Glens Falls, of counsel), for respondent-appellant.

Caffry, Pontiff, Stewart, Rhodes & Judge, Glens Falls (Robert S. Stewart, Glens Falls, of counsel), for appellant-respondent. McGivern, Shaw & O'Connor, Scotia, for New York State Public High School Athletic Ass'n, Inc., amicus curiae.

Before MAHONEY, P. J., and KANE, STALEY, CASEY and HERLIHY, JJ.

KANE, Justice.

In April of 1976 plaintiff, a spectator at a high school baseball game, was struck in the eye by a foul ball as she stood behind a fence along the third base line. Approximately three feet high, both base line fences were parallel to and about 60 feet distant from the first and third base lines. They extended from a backstop some 24 feet high and 50 feet wide that was located behind home plate in front of bleacher seating. The jury assessed her damages in the sum of $100,000 and apportioned fault at 65% to defendant and 35% to plaintiff in accordance with instructions of the trial court under the rule of comparative negligence (CPLR 1411). The court refused to separately charge that plaintiff assumed the risks attending her status as a spectator, and charged the jury that the duty owed by defendant as the owner of the premises was one of reasonable care (Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868).

When the Legislature adopted a doctrine of pure comparative negligence, it explicitly melded contributory negligence and assumption of risk into the term "culpable conduct" and determined that such conduct was to be considered in measuring the amount of diminution of any damages a plaintiff might otherwise be entitled to recover (CPLR 1411). However, while the statute undoubtedly eliminated assumption of risk as a complete defense to the same extent that a plaintiff's own negligence was discarded as an absolute barrier to recovery, the doctrine may still possess some of its former vitality in the strict sense of negating a defendant's duty (cf. Baker v. Topping, 15 A.D.2d 193, 222 N.Y.S.2d 658; McEvoy v. City of New York, 266 App.Div. 445, 42 N.Y.S.2d 746, affd. 292 N.Y. 654, 55 N.E.2d 517). In applying a standard of comparative negligence, most jurisdictions have continued to recognize, for example, that a contractual or express assumption of risk will relieve a defendant of responsibility to the plaintiff (see Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226; Annot., 78 A.L.R.3d 339, 379-386). The circumstances here plainly do not fit into such a limited category, for plaintiff's conduct did not unquestionably manifest an intent to free defendant from all obligation to her. Accordingly, the trial court correctly refused to specifically charge assumption of risk by the plaintiff. Other issues raised on this appeal, involving the condition of the field and comments made by plaintiff's counsel in summation, are not of such a nature as to cause us to disturb the verdict of the jury, which, on this record, was fair and reasonable.

The judgment should be affirmed, with costs.

Judgment affirmed, with costs.

MAHONEY, P. J., concurs.

HERLIHY, J., concurs in a separate opinion.

STALEY and CASEY, JJ., dissent and vote to reverse in an opinion by CASEY, J.

HERLIHY, Justice (concurring).

I do not perceive any basis for a dismissal of the complaint upon the ground that as a matter of law the plaintiff's assumption of risk was a 100% equivalent of damages, and the dissenters suggest no solid basis whereby I can conclude that there was a failure by the plaintiff to prove facts sufficient to make a jury issue of negligence or lack of reasonable care.

We are concerned on this appeal with the purpose and meaning of CPLR 1411, enacted by the Legislature in 1975, which reads as follows:

In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.

The key to the section is the word "damages" and connotes the adoption of comparative negligence in this state, which prior thereto in many cases had resulted in compromise verdicts by the jurors. The section further establishes a rule known as "culpable conduct", which specifically includes contributory negligence and assumption of risk. It in no way eliminates these basic principles, but includes them in the broader term.

The decisional law holdings in the cases such as Ingersoll v. Onondaga Hockey Club, Inc., 245 App.Div. 137, 281 N.Y.S. 505 and Baker v. Topping, 15 A.D.2d 193, 222 N.Y.S.2d 658 remain appropriate as a defense against liability for damages in personal liability, property damage and wrongful death actions. The distinction now applicable is that instead of having to establish a "complete" lack of culpable conduct, a plaintiff must only establish that the damages are something more than the proportion of his culpable conduct to the conduct of the defendant or defendants as the case may be. The defendant now cannot rely upon a complete release from damages simply by showing contributory negligence or assumption of risk (or other culpable conduct) on the part of the plaintiff. However, the defendant still can completely avoid damages by proving that upon comparison the contributory negligence or assumption of risk proportionally reduces damages to zero.

In the case of Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, 387, n.2, 384 N.Y.S.2d 115, 122, n.2, 348 N.E.2d 571, 578, n.2 the court stated in a footnote: "Since the enactment of CPLR 1411-1413, no procedural distinctions between contributory negligence and assumption of risk now come to mind." In the present case we are not concerned with procedure, but with the substantive law applicable to a negligence action. It seems apparent that a defendant in a case with facts involving the principle of assumption of risk is still entitled to have the elements thereof charged to a jury as was the case before comparative negligence. The only difference is that the jury cannot be charged that assumption of risk, if they find it to have been assumed, is automatically a complete release of the defendant from damages (Baker v. Topping, supra, p. 196, 222 N.Y.S.2d 658). The jury must now apply the risk assumed in proportion to the culpable conduct of the defendant.

This reasoning as applied to the present case justified the request of defendant for a charge of the rule of law of assumption of risk. In response to the request by defendant's counsel for such a charge (prior to the actual charge) the court responded: "I intend to discuss very generally that there are certain inherent risks in any spectator sport of this nature, but I am not going to get into the doctrine of assumption of risk and what it means." It is evident that the court recognized the continuing viability of the defense of contributory negligence as it distinctly charged that particular doctrine of law. There is no basis for not so charging as to assumption of risk. The charge as requested was of particular importance in what might be characterized as a spectator event where the risk is evident from the type of event and where the assumption of risk is not necessarily the equivalent of duty.

The fulcrum for my vote in this case is whether or...