Whether C.P.L.R. 1602(2)(iv) creates an exception precluding the apportionment of damages under C.P.L.R. 1601[1] when liability arises from a breach of a non-delegable duty.

No. The court may instruct the jury that C.P.L.R. 1602(2)(iv) does not create an exception to the apportionment of non-economic damages even though Nassau County's liability arose from a breach of non-delegable duty.

While incarcerated at the Nassau County Correctional Center, the facility instituted the policy that Plaintiff Neville Rangolan inmate was not to be housed with inmate Steven King. Failing to notice this instruction in Rangolan's file, an officer housed Rangolan and King together. King beat Rangolan severely. Rangolan and his wife commenced a suit in federal court against Nassau County, alleging negligence for failing to protect Rangolan and a section 1983 claim. Granting Rangolan's motion for judgment as a matter of law on the negligence claim and denying the section 1983 claim, the District Court ordered a trial on the damages.

The County requested that the district court instruct the jury on C.P.L.R. § 1602(2)(iv), which would allow apportionment of damages between Nassau County and King. The district court refused the instruction and the jury awarded Rangolan damages for past and future pain and suffering as well as damages to Rangolan's wife for loss of services. Both parties appealed to the United States Court of Appeals for the Second Circuit. Noting the absence of controlling precedent, the Second Circuit certified the C.P.L.R. § 1602(2)(iv) apportionment issue to the Court of Appeals.

The legislative history of C.P.L.R. Art. 16 indicates that it modifies the common law rule of joint and several liability to assure that a defendant responsible for a minor degree of fault will not be forced to pay a disproportionate amount of damages. Exceptions to this modification exist that preserve the common law rule. The District Court's ruling asserts that § 1602(2)(iv) creates one of these exceptions when there is a breach of non-delegable duty.

The Court of Appeals asserted that construing § 1602(2)(iv) as an exception to limited liability would impose joint and several liability on low-fault, "deep pocket" defendants in every instance where they owe a non-delegable duty or are vicariously liable through respondeat superior, thereby eviscerating C.P.L.R. Art. 16 of its purpose. The Court further noted that because there is such a breadth of responsibilities that may be considered non-delegable, they could not conclude that the legislature intended to exclude every breach of non-delegable duty from article 16. Thus, the County was not precluded from seeking apportionment of damages in this case.