McCabe v. Easter

• Decision Date: 04 June 1987
• Citation: 128 A.D.2d 257,516 N.Y.S.2d 515
• Parties: Morris McCABE et al., Appellants, v. David EASTER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 515

516 N.Y.S.2d 515

128 A.D.2d 257

Morris McCABE et al., Appellants, v. David EASTER, Respondent.

Supreme Court, Appellate Division,

Third Department.

June 4, 1987.

Joseph V. Zumbo (James D. Linnan, of counsel), Albany, for appellants.

Maynard, O'Connor & Smith (Christine Kirwin Krackeler, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and HARVEY, JJ.

MAHONEY, Presiding Justice.

On February 19, 1982, while plaintiff Morris McCabe (hereinafter plaintiff), a letter carrier with the United States Postal Service, was delivering mail to defendant, he slipped on a patch of ice covered by a dusting of snow on defendant's sidewalk and fell. Plaintiff sustained a fractured leg. Plaintiff commenced this personal injury action alleging negligence on the part of defendant. Plaintiff's wife asserted a derivative claim. After a jury trial, a verdict was rendered which apportioned culpable conduct at 60% against defendant and 40% against plaintiff. The jury found damages to be $12,600. Plaintiff now appeals.

Plaintiff contends that Supreme Court erred in charging to the jury both contributory negligence and assumption of risk. Supreme Court charged the jury with regard to assumption of risk and then instructed them to note on a verdict sheet the percentage to which this contributed to the accident, if at all. The jury was then instructed regarding contributory negligence and again told to note the percentage, if any, that it contributed to the accident. Plaintiff contends that charging both doctrines and requiring verdicts on each served to overwhelm the jury with a psychological compulsion to find at least one.

CPLR 1411 provides that the amount of a plaintiff's damages "shall be diminished in the proportion which the culpable conduct attributable to the claimant * * * bears to the culpable conduct which caused the damages". The phrase "culpable conduct" refers not only to negligent conduct on the part of a plaintiff, but conduct which, for whatever reason, the law deems blameworthy (Arbegast v. Board of Educ., 65 N.Y.2d 161, 168, 490 N.Y.S.2d 751, 480 N.E.2d 365). Implied assumption of risk consists of a plaintiff voluntarily encountering the risk of possible harm to himself or herself (id., at 169, 490 N.Y.S.2d 751, 480 N.E.2d 365), and it is a factor to be considered in apportioning culpable conduct to a plaintiff (Mesick v. State of New York, 118 A.D.2d 214, 218, 504 N.Y.S.2d 279, 1v. denied 68 N.Y.2d 611, 510 N.Y.S.2d 1025, 502 N.E.2d 1007). Although the distinction is sometimes difficult to discern, implied assumption of risk and contributory negligence are distinct legal theories, and if the evidence introduced by a defendant supports both theories, the defendant is entitled to a jury charge on both. However, since assumption of risk and contributory negligence are but different theories of one affirmative defense, i.e., ...