What's happening
This bill clarifies that the party asserting comparative negligence as a defense must prove culpable conduct in court or on summary judgment.
Why it matters
Shifts the burden of proof. The bill makes it explicit that if a defendant claims the plaintiff was also negligent (comparative negligence), it is the defendant’s responsibility to both raise and prove that claim, not just allege it.
Applies to both trial and summary judgment. The requirement to provide evidence of the plaintiff’s culpable conduct applies whether the claim is made during a trial or in pre-trial motions (like summary judgment), ensuring this standard is enforced at all stages.
Potentially affects litigation strategy and outcomes. Plaintiffs may face fewer unsupported comparative negligence defenses, as defendants must present concrete evidence early in the process, possibly reducing frivolous or speculative defenses and streamlining cases.
Immediate and broad impact. The law would apply not only to future cases but also to lawsuits that are already pending, potentially altering the course of current litigation and requiring immediate attention from parties involved.
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Who cares
Plaintiffs facing comparative negligence defenses
The bill would explicitly place the burden of presenting proof of their culpable conduct on the party seeking to reduce damages, both on summary judgment and at trial.
Defendants asserting comparative negligence
They would have to present proof of culpable conduct when asserting the defense on a summary judgment motion or at trial.
Civil litigators
The explicit proof requirement would apply immediately to pending actions as well as actions commenced on or after the effective date.
Headline styles
Shift Negligence Proof Burden
Plain English, a few words. Used as the page title.
Sponsors
Senator · Senate District 42
No co-sponsors yet.
History
- Referred to judiciary
- Reported and committed to rules
- Referred to judiciary
Full text
1 pageUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
2057
2017-2018 Regular Sessions
IN SENATE
January 11, 2017
Introduced by Sen. BONACIC -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary
AN ACT to amend the civil practice law and rules, in relation to the burden of demonstrating comparative negligence
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Section 1412 of the civil practice law and rules, as added by chapter 69 of the laws of 1975, is amended to read as follows:
§ 1412. Burden of pleading; burden of proof. Culpable conduct claimed in diminution of damages, in accordance with section fourteen hundred eleven, shall be an affirmative defense to be pleaded and proved by the party asserting the defense, and that party shall have the burden of interposing proof of culpable conduct when asserting such a defense on a motion for summary judgment or at trial.
§ 2. This act shall take effect immediately and shall apply to all actions pending or commenced on or after such effective date.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05117-01-7
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the civil practice law and rules, in relation to the burden of demonstrating comparative negligence
Purpose of bill
To clarify CPLR 1412 and the applicable burden of proof for establishing culpable conduct as an affirmative defense.
Summary of provisions of bill
This bill would make it clear that the party asserting culpable conduct as an affirmative defense bears the burden of proof of establishing the viability of the defense.
Read the full memo (759 words)
Effects of present law which this bill would alter
Section 1412 of the civil practice law and rules.
Justification
In recent years, case law has seemed to diverge from the original purpose and intent of CPLR 1412, as originally chaptered. L. 1975, Ch. 69. CPLR 1412 had codified the affirmative defense of culpable conduct in diminution of damages, consistent with CPLR 1411, which was also enacted in that chapter.
CPLR 1412 was adopted at that time upon recommendation of the Judicial Conference, to join the vast majority of other jurisdictions in rejecting a plaintiff's contributory negligence as a bar to recovery. In addressing the provisions of CPLR 1412, the Judicial Conference noted:
"This section brings New York law on the issue into conformity with the majority rule and represent the culmination of the gradual but persistent erosion of the rule that freedom from contributory negligence must be pleaded and proven by the plaintiff . . . . Because 'they are both manifestations of the same or similar considerations . . . . burden of pleading and burden of proof are usually parallel.' James, Civil Procedure p. 265 (1965). This is generally true in New York (see 3 Weinstein, Korn & Miller, New York Civil Practice-CPLR 3018.14 (Matthew Bender)) and there is no reason to make an exception where one seeks to diminish damages otherwise recoverable by asserting, pursuant to this article, that the claimant's culpable conduct contributed to his harm."
Notwithstanding the plain intent of placing the burden of pleading and proof of a plaintiff's comparative fault on defendant, some courts have, in recent years, placed upon a personal injury plaintiff moving for summary judgment the burden of disproving comparative fault as an element of his or her burden in making that motion. Thus, in numerous pedestrian knock-down cases, injured plaintiffs, struck while in a crosswalk, walking with the light, were denied summary judgment on liability because they failed in their moving papers to demonstrate the absence of comparative fault, notwithstanding defendants' failure to demonstrate in their papers that there was comparative fault on plaintiff's part (see, e.g., Day v. MTA Bus Co., 94 A.D.3d 940 (2nd Dept. 2012); Rodgers v. Duffy, 87 A.D.3d 1126 (2nd Dept. 2011); Roman v. Al Limousine, Inc., 76 A.D.3d 552 (2nd Dept. 2010); Yuen Lum v. Wallace, 70 A.D.3d 1013 (2nd Dept. 2010)). In so ruling, the courts frequently rely upon the Court of Appeals holding in Thoma v. Ronai, 82 N.Y.2d 736 (1993). However, that decision merely held that, after all submitted papers had been considered, "plaintiff did not satisfy her burden of demonstrating the absence of any material issue of
fact." It did not directly address who has the burden of going forward with evidence of comparative fault on a motion for summary judgment.
This amendment would not overrule Thoma; if, in response to a plaintiff's motion demonstrating defendant's liability, defendant presents evidence of plaintiff's comparative fault sufficient to raise a question of fact, summary judgment would be properly denied. However, in light of the Legislature's manifest intent to place the burden of pleading and proving a plaintiff's comparative fault upon the defendant, there is no reason to reverse that burden, and to place upon a plaintiff the burden of going forward with proof of a negative - - i.e., the absence of comparative fault - - in seeking summary judgment. This is the conclusion reached by noted commentators (Siegel, New York Practice § 280 (January 2013 Supplement); see Connors, Can Comparative Fault Stop the Train Known as Summary Judgment?, NYLJ, 1/16/13), and some thoughtful judges (e.g., Capuano v. Tishman Construction Corp., 98 A.D.3d 848 (1st Dept. 2012) (Concurring Op of Justices Saxe and Acosta)).
This bill was proposed by the Committee on Civil Practice Law and Rules of the New York State Bar Association.
Legislative history
S.7779 of 2016- Died in Senate Rules, Died in Assembly Judiciary
Fiscal implications for state and local governments
None.
Effective date
Immediately, and shall apply to all actions pending or commenced on or after such effective date.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.