O'Connor v. State

Mahoney, P. J. (dissenting).

While we agree with the majority that the Court of Claims properly found that the State was negligent and that such negligence was the proximate cause of decedent’s damages, we cannot agree with the apportionment of culpable conduct. In the prior Supreme Court action, the jury found that the proportion of culpable conduct which caused the damages which was attributable to decedent *126was 60%. When the action in the Court of Claims then went to trial, claimant was collaterally estopped from attempting to prove that decedent’s share of culpable conduct was less than 60%. For collateral estoppel, or more precisely, issue preclusion, to apply, two requirements must be met, the first being an identity of issue and the second being that the party in the latter action against whom preclusion is sought was a party in the prior action and had a full and fair opportunity to litigate the issue in the first action (see, Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65). In the instant case, the State contends that claimant had a full and fair opportunity to litigate the issue of decedent’s culpable conduct in the first trial, and the jury’s finding on the issue is binding on claimant in the second action. This is an example of third-party issue preclusion (see, Koch v Consolidated Edison Co., 62 NY2d 548, 554, cert denied 469 US 1210; Matter of American Ins. Co. [Messinger—Aetna Cas. & Sur. Co.], 43 NY2d 184, 190).

In applying this doctrine to the instant case, it is crucial to properly identify the issue necessarily decided in the first action. It is true that the issue of the State’s negligence was not decided in the first action. At issue before the jury was decedent’s share of the culpable conduct which caused the accident. CPLR 1411 provides that a plaintiffs damages "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” (emphasis supplied). Thus, in any negligence action, the trier of fact must decide the plaintiffs share of culpable conduct which caused the action vis-á-vis all other causes, including conduct of tort-feasors not in the courtroom (see, e.g., Cid v Bombardier Ltd., 91 AD2d 913; Hyde v County of Rensselaer, 73 AD2d 1021, affd 51 NY2d 927). Accordingly, the culpable conduct of all persons who contributed to the damages is considered even if they are not parties to the action because, for example, they have settled, or are unknown or are not subject to the jurisdiction of the court in which the action was brought (1B Warren’s Negligence, Comparative Negligence § 2.02 [2] [C], at 949-950 [3d ed]; Report of Admin Bd of Jud Conf [special six-month pamph], July 1, 1974—Dec. 31, 1974, 1975 NY Legis Doc No. 91, at 140-141).

In the instant case, the jury at the first trial assessed culpable conduct of 60% against decedent. This finding did not mean that, as among the parties in the action (i.e., decedent, *127Sulger and the cycling association members), decedent was 60% at fault for the accident. Rather, the verdict meant that, considering all causative factors, 60% of the culpable conduct which caused the accident was attributable to decedent. Thus, while the State’s liability was not decided in the first action, it was relevant to the extent that it would serve to reduce decedent’s share of the culpable conduct which caused the damages.*

In the subsequent action in the Court of Claims, the issue was, again, decedent’s share of the culpable conduct which caused the action. Such issue is identical to the issue in the initial Supreme Court action. Since claimant had a full and fair opportunity to litigate that issue in the earlier action, she was precluded from proving that decedent’s share of the culpable conduct which caused the accident was less than 60%. Obviously, since the State was not a party in the prior Supreme Court action, it was not so precluded, and could have attempted to prove that claimant’s share of the culpable conduct which caused the accident was greater than 60%.

The Court of Claims, therefore, erred in assessing 50% culpable conduct against decedent. This being a nonjury trial, this court can, upon review of the record, grant the judgment which should have been granted, including the apportioning of liability (Mesick v State of New York, 118 AD2d 214, 219, lv denied 68 NY2d 611).

Based on our review of the record, we see no reason to assess decedent’s culpable conduct at more than the 60% arrived at by the jury in the prior Supreme Court action. Therefore, we would modify the judgment by increasing decedent’s share of culpable conduct to 60%.

Mikoll and Harvey, JJ., concur with Main, J.; Mahoney, P. J., and Weiss, J., dissent and vote to modify in an opinion by Mahoney, P. J.

Judgment affirmed, with costs.

After the trier of fact determines the plaintiff’s share of culpable conduct, the issue of a nonparty joint tort-feasor’s culpable conduct is no longer relevant in that action. Because of the doctrine of joint and several liability, all defendants remain liable to the plaintiff for all of his damages less the plaintiff’s share of culpable conduct. The apportionment for contribution purposes (CPLR 1402) among the joint tort-feasors is limited to the defendants appearing in the action, assuming the appropriate cross claim, counterclaim or third-party claim was interposed. Contribution from non-parties would be sought by way of a separate action (CPLR 1402).