CASE STUDIES

Artibee v. Home Place Corporation

Artibee v. Home Place Corporation

Artibee v. Home Place Corporation, Warren County Supreme Court Index No.:57087; Court of Appeals Dkt No. 2016-00018. 

On August 15, 2011, plaintiff Carol Artibee was driving north on State Route 9N when she was injured when a large branch/limb broke off a tree located on the defendant’s property. The branch/limb fell through plaintiff’s soft-top Jeep roof and struck her in the head. Plaintiff commenced an action in negligence against defendant in Supreme Court, Warren County, alleging that defendant was negligent in failing to inspect, trim and remove the dead or diseased tree.  In addition, plaintiff filed a claim against the State of New York in the Court of Claims, alleging that the Department of Transportation was negligent in its failure to monitor open and obvious hazards alongside the state highway (i.e. the tree) and to remedy this specific dangerous condition or warn the property owner or drivers of the hazard.

The defendant requested that the Court submit the issue of the State’s potential liability to the jury pursuant to CPLR Article 16, which provides for the apportionment of tortfeasors’ liability for non-economic damages.  Plaintiff was still pursuing her claim against the State in the Court of Claims.  Plaintiff objected to the submission of the issue of the State’s liability to the jury in the Supreme Court action on the basis that the State was not, and could not be, a named defendant in the Supreme Court action.  Thus, the jury would be considering the potential liability of an “empty chair”.  Defendant argued that consideration of the liability of an absent party in a Supreme Court action frequently occurs.  Further, CPLR 1601(1) which limits the consideration of the liability of absent parties when the plaintiff demonstrates that she cannot obtain jurisdiction over the absent party, has been interpreted to mean that the inability to obtain personal jurisdiction over an absent party is not applicable to the State of New York as a party; especially since the statute permits the Court of Claims to consider the potential liability of a non-State tortfeasor in the Court of Claims action, where non-State entities are also not permitted to be parties. 

The Supreme Court ruled that while the evidence of the State’s negligence would be admissible, the jury would not be allowed to apportion liability between defendant and the non-party State of New York.  The Court stated that defendant was, in essence, seeking “to have the jury apportion liability amongst itself and a constitutionally mandated empty chair”.  Defendant appealed to the Appellate Division Third Department.

The Appellate Division, Third Department, in a 3-1 decision, reversed the Supreme Court ruling and determined that evidence of the State’s negligence was admissible at trial in the Supreme Court and that the jury should be charged on the issue of the State’s potential liability.  Therefore, the jury could apportion fault between defendant and non-party State of New York, citing the concerning situations where statutory limitations prevented proceeding against entities in bankruptcy or employers.  In its decision, the Court noted that the appeal was the first time that the issue was presented to any of the Departments of the Appellate Division.

 Plaintiff then applied for, and was granted, leave to appeal to the Court of Appeals.

The sole question presented to the Court of Appeals is whether, under CPLR 1601(1), a jury in an action in Supreme Court can consider the potential liability of the State of New York, which can only be sued in the Court of Claims, and apportion liability between the named defendant and the non-party State.  The appeal is specifically concerned with the interpretation of that portion of CPLR 1601(1) known as the “first proviso”: “provided, however that the culpable conduct of any person not a party to the action shall not be considered in determining any equitable share herein if the claimant proves that with due diligence he or she was unable to obtain jurisdiction over such person in said action (or in a claim against the state, in a court of this state)”.

Plaintiff claims that since there is no express provision permitting consideration of the liability of the State in a Supreme Court action, while there is express permission granted for the consideration of the liability of the non-State party in the Court of Claims, the Legislature has indicated that there can be no such consideration of the State’s liability in the Supreme Court. 

Defendant contends that the parenthetical, which permits the consideration of the liability of the non-State entity in the Court of Claims, illuminates the previous portion of the “first proviso” and supports the interpretation made by the lower courts (until the Supreme Court’s decision in this case) that the Legislature intended the limitation to be applicable only when the plaintiff could demonstrate that she could not obtain personal jurisdiction over the absent party.  As the State is always present in the State of New York, any plaintiff could obtain personal jurisdiction over the State so that the State’s absence from the Supreme Court action is solely because of the Constitutional doctrine of sovereign immunity.

The Attorney General has submitted an amicus curiae brief favoring the plaintiff’s position.  All the briefs in the matter have been filed with the Court of Appeals and oral argument is expected sometime in the Fall of 2016, although the matter has not yet been calendared by the Court of Appeals.