Faragiano v. Town of Concord, 96 N.Y.2d 777 (2001)
CPLR 1602(2)(iv) is a savings provision that ensures a defendant with a non-delegable duty remains vicariously liable for the negligence of its delegates or employees, but does not automatically bar apportionment of noneconomic damages among joint tortfeasors.
Summary
Paul Faragiano was injured when the Jeep he was in crashed. He sued multiple parties, including the Town of Concord, alleging negligent road construction and maintenance. The Town sought apportionment of liability under CPLR article 16. Faragiano argued CPLR 1602(2)(iv) precluded apportionment because the Town had a non-delegable duty. The Court of Appeals held that CPLR 1602(2)(iv) is a savings provision preserving vicarious liability, not a bar to apportionment between the Town and other tortfeasors, unless the Town’s liability is vicarious for the negligence of a delegate, such as the contractor Midland Asphalt.
Facts
Seventeen-year-old Paul Faragiano was injured when a Jeep he was riding in veered off the road, rolled over, and struck a camper.
Faragiano sued the driver of the Jeep, the owner of the camper, the contractor (Midland Asphalt) that resurfaced the road, and the Town of Concord.
Faragiano alleged the Town negligently constructed and maintained the road, and Midland Asphalt negligently allowed oil or tar to build up on the road.
Procedural History
The Town asserted an affirmative defense, seeking apportionment of liability for noneconomic losses under CPLR article 16.
Faragiano moved to amend the complaint, arguing CPLR 1602(2)(iv) precluded apportionment because the Town had a non-delegable duty.
The Town cross-moved for partial summary judgment on its article 16 defense, arguing CPLR 1602(2)(iv) was a savings provision, not an exception to apportionment.
Supreme Court granted Faragiano’s motion and denied the Town’s cross-motion, concluding the non-delegable duty barred limited liability under CPLR article 16.
The Appellate Division affirmed. The Court certified the question of whether the order was properly made to the Court of Appeals.
Issue(s)
Whether CPLR 1602(2)(iv) bars a defendant from seeking apportionment under CPLR article 16 when liability is based on a non-delegable duty or respondeat superior?
Holding
No, because CPLR 1602(2)(iv) is a savings provision that ensures a defendant under a non-delegable duty remains vicariously liable for the negligence of its delegates or employees, but does not automatically bar apportionment between joint tortfeasors unless the defendant’s liability is solely vicarious.
Court’s Reasoning
The Court of Appeals relied on its decision in Rangolan v. County of Nassau, 96 N.Y.2d 42, which addressed the interpretation of CPLR 1602(2)(iv).
The Court rejected the argument that CPLR 1602(2)(iv) bars apportionment of noneconomic damages where liability arises from a breach of a non-delegable duty.
The Court clarified that CPLR 1602(2)(iv) is a savings provision, preserving vicarious liability for the negligence of delegates or employees. Thus, while the Town can seek apportionment between itself and other joint tortfeasors for whose liability it is not answerable, to the extent the Town is vicariously liable for the negligence of Midland Asphalt, CPLR 1602(2)(iv) does preclude apportionment between them.
The court quoted Lopes v. Rostad, 45 N.Y.2d 617, 623, stating a municipality owes a non-delegable duty to maintain its roads in a reasonably safe condition. This emphasizes that the non-delegable duty does not, in itself, eliminate the possibility of apportionment under Article 16; rather, it affects the scope of vicarious liability retained by the municipality.
The practical implication of this ruling is that municipalities and other entities with non-delegable duties can still benefit from the limitations on joint and several liability afforded by CPLR Article 16 when they are directly negligent, but remain fully liable for the negligence of those to whom they delegate the duty.