In trips and falls on either a broken sidewalk or defective stairway, defendant will claim that plaintiff was either wholly or partially responsible for the accident.
New York law used to recognize the defense of plaintiff’s contributory negligence as an absolute defense. In other words, even if plaintiff were as little as 1% responsible for the happening of the accident, plaintiff could not recover. New York’s legislature recognized the unfairness of this rule, and it enacted the rule of “culpable conduct.”
The concept of “culpable conduct” is that even if a plaintiff were partially responsible for the occurrence, plaintiff would still be entitled to a recovery. However, if plaintiff did contribute to the happening of the accident, the jury could assess a percentage of blame against plaintiff. Such percentage would act as a credit against the verdict.
Mary Jones tripped on a broken sidewalk in front of 295 Ocean Parkway. She was walking with her grandson of 7 years of age.
The owner of the adjoining premises, a large apartment house, would be liable for the condition of the sidewalk. However, the landlord claims the defense of culpable conduct in that plaintiff should have avoided an obvious and open defect. In other words, if plaintiff were paying attention, then she would have avoided the defect.
On the cross-examination of Ms. Jones the landlord’s lawyer brings-out that she was watching her grandson who was running ahead of her. The landlord’s argues on closing that Ms. Jones was watching her grandson rather than where she was walking.
The jury awards $50,000 to Ms. Jones. However, the jury finds that she was 50% responsible for the accident. Therefore, the client’s net jury award is $25,000.
Culpable conduct will be a consideration where plaintiff was an “active” participant in the accident, such as walking on a sidewalk, descending stairs, opening doors, entering a room, etc. In our experience, a jury will impute some culpable conduct against a plaintiff who is an active participant even where there is no evidence of plaintiff’s carelessness. Often, the jury will accept defense counsel’s mere argument that plaintiff could have prevented the fall.
The jury can assign either no culpable conduct or a percentage against plaintiff. If the jury assigns percentage, then they must equal 100%. It is feasible that the jury can make a finding of 90% liability against plaintiff. For example, we know of a case where plaintiff went through a stop sign, and the jury assigned 90% blame against plaintiff.
Here is another example:
Bianca Gonzalez returned from work to find the lobby floor of her apartment house to be one sheet of ice. It was the dead of winter, and a flood in the lobby had frozen. Ms. Gonzalez testified that she walked very gently and carefully and held onto the wall. Unfortunately, she slipped and fell and sustained serious injuries.
The landlord had no witnesses to contradict that Ms. Gonzalez’s claim that she was walking slowly and carefully. No person testified that she was walking carelessly on ice. Instead, the landlord’s attorney argued in closing that Ms. Gonzalez could have been more careful and could have prevented the accident. He even argued that she could have waited on the front stoop in the cold until the superintendent removed the ice.
The jury found Ms. Gonzalez 50% liable.
Therefore, culpable conduct is carefully considered in our evaluation of a client’s case.
If you have been involved in an accident, please call me at 800-581-1434 for a free consultation. Or write to us at firstname.lastname@example.org.
Mark E. Seitelman, 5/19/09, www.seitelman.com,