The issue presented in this smoker suit, which is of apparent first impression in this State, is whether a defendant can "waive" the affirmative defense of comparative fault on the eve of trial and thus block plaintiff's request for a charge on this issue.^[FN1]

At trial, plaintiff set out to demonstrate that the decedent was unable to heed the warnings about the dangers of cigarette smoking because he was addicted and unable to quit. Defendants attempted to show that the decedent would have been able to quit if he chose to do so and proceeded in voir dire ^[FN2] and in opening statements ^[FN3] and in the defense case in chief ^[FN4] and in [*2]summation ^[FN5] to show that it was the smoker's decision to continue smoking and not the conduct of the tobacco companies that was responsible the smoker's lung cancer.

Plaintiff requested a charge on comparative fault. Defendants, in opposition, claimed that only they should be able to decide whether to raise this affirmative defense and argued that the decedent's conduct was relevant only with respect to the question of whether plaintiff met her burden of proving proximate cause.

To fully address this novel issue, we need to first consider the delicate interplay between the concepts of comparative fault and proximate cause.

Comparative Fault

New York's comparative fault legislation ^[FN6] has rounded the quarter century mark and many of the early concerns with respect to its application have been resolved. "The phrase [culpable conduct] was 'used instead of 'negligent conduct' because this article [is intended to] apply to cases where the conduct of one or more of the parties will be found to be not negligent, but will nonetheless be a factor in determining the amount of damages . . .'The defendant's culpable conduct may include, but is not necessarily limited to, negligence, breach of warranty, a violation of statute giving rise to civil liability, conduct giving rise to liability upon a theory of strict liability, and intentional misconduct'." Arbegast v. Board of Education of South New Berlin Cent. School, 65 N.Y.2d 161, 167 (1985).^[FN7] [*3]

Although comparative fault is an "affirmative defense to be pleaded and proved by the party asserting the defense," CPLR §1412, Bycel v. Freeman, 95 Misc.2d 270(Sup. Court, N.Y. Co. 1978), trial courts have refused plaintiffs' requests to so charge at their peril. Gonzalez v. Medina, 69 A.D.2d 14, 20 (lst Dept. 1979)(error not to have instructed the jury on comparative fault in accordance with the plaintiff's request); Runfola v. Bryant, 127 A.D.2d 972(4th Dept. 1987)(same); Meyer v. Ambassador Trucking corp, 72 A.D.2d 556 (2d Dept. 1979)(in face of trial court's refusal of plaintiff's request for a charge on comparative fault, Court held that "It is beyond cavil that "All courts are required . . . to take judicial notice of the Constitution, the public statutes and the common law of the forum . . . Hence, it was error for the trial court to refuse to charge on the applicable law." ). See also Grisoff v. Nicoletta, 107 A.D.2d 1047,1048(4th Dept. 1985)("court's failure to instruct the jury regarding principles of comparative negligence , deprived them of a fair trial.")

Indeed the Second Department recently held that "It is well settled that instruction on the question of comparative negligence should be given to the jury where there is any valid line of reasoning or permissible inferences which could possibly lead rational individuals to the conclusion of negligence on the basis of the evidence presented at trial , , , Furthermore whether a plaintiff is comparatively negligent is almost invariably a question of fact and is for the jury to determine in all but the clearest of cases." Shea v. New York City Transit Authority, 289 A.D.2d 558, 559 (2d Dept. 2001);Gallo v. 800 Second Operating Inc., 300 A.D.2d 537, 538(2d Dept. 2002).

Proximate Cause

"The concept of proximate cause, or more appropriately legal cause, has proven to be an elusive one, incapable of being precisely defined to cover all situations . . . Depending on the nature of the case, a variety of factors may be relevant in assessing legal cause." Derdiarian v. Felix Constr Co, 51 N.Y.2d 308, 314-315 (1980) Nonetheless, all a plaintiff need show is that the [*4]defendant's conduct was a substantial factor in bringing about the injury. Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520(1980)("It is plaintiff's burden to show that defendant's conduct was a substantial causative factor in the sequence of events that led to . . . injury." )This showing need not eliminate every other factor that may have contributed to the cause of the injury. Galioto v. Lakeside Hospital, 123 A.D.2d 421, 422 (2d Dept. 1986).( "It is well settled law that in order for a plaintiff to recover damages, a defendant's negligence need not be the sole cause of the injury; it need only have been a substantial factor in bringing the injury about.".)

"Proximate cause serves a somewhat different role in products liability cases than in ordinary negligence actions. To establish proximate cause in a products liability case, a plaintiff must show that the defect in the product was a substantial factor in causing the injury. [The] causal connection [is] not automatically severed by . . . intervening conduct unless that conduct was, as a matter of law, extraordinary under the circumstances, not foreseeable in the normal course of events or independent of or far removed from [the defendant-manufacturer's ] conduct." Nutting v. Ford Motor Co., 180 A.D.2d 122, 131(3d Dept. 1992). In Nutting, the driver continued to knowingly use a car whose engine had stalling problems.. A fatal accident occurred when this car drifted into the path of an oncoming vehicle as the driver was attempting to cope with the stalled engine. Nonetheless, the Court declined to find, as a matter of law, that the driver's failure to correct the problem broke the chain of causation, but rather held that such conduct is relevant to issues of intervening cause and apportionment of fault. Id.

The chain of causal connection is, indeed, sturdy and not readily susceptible to disruption by intervening conduct. In one recent instance, a drunk driver drove his car off an exit ramp at thirty five miles an hour, straight into a utility pole. According to the Court of Appeals, plaintiff's decedent's conduct did not affect the auto manufacturer's duty to "produce a product that does not unreasonably enhance or aggravate a user's injuries." Alami v. Volkswagen of America Inc., 97 N.Y.2d 281,287(2002). Since Volkswagen did not even contest the expert's findings with respect to the crash worthiness of the vehicle, The Alami Court strongly disagreed with the Appellate Division's determination that intoxication was, as a matter of law, the "sole proximate cause" of the accident and decedent's injuries and reversed. The dissent, vigorously protesting, pointed out that this case falls squarely within the preclusion doctrine of Barker v. Kallash, 63 N.Y.2d (1984) and Manning v. Brown, 91 N.Y.2d 116 (1997), which denies judicial relief to those injured in the course of committing a serious criminal act and does not permit the apportionment of fault between the parties.

As the discussion above demonstrates, where fault on the part of the plaintiff is implicated, the only time that fault is relevant exclusively to proximate cause and not to an assessment of comparative fault is where, as a matter of law, that fault is the sole proximate cause of the harm or where because of a legal impediment, plaintiff's fault cannot be considered unless it is shoe horned into the case by being characterized as the sole proximate cause of the injury. ^[FN8] As one commentator aptly noted, the sole proximate cause defense does little more than divert the jury's attention from the ultimate issue of the defendant's relative fault." John G. Phillips, The Sole Proximate Cause "Defense"; A Misfit in the World of Contribution and Comparative Negligence, 22 S.Ill. U.L.J. 1,2(Fall, 1997).

This Court agrees. [*5]

"Waiver" of the Affirmative Defense of Comparative Fault

In light of these principles, we must determine the legal effect, if any, of the defendant's attempted "waiver" of the defense of comparative fault. Where, as here, comparative fault was pleaded as part of the defendant's answer, any alteration in that pleading would have to be made by way of a motion to amend the pleading. CPLR §3025. Since the time for amendment as of right has long since passed, CPLR §3025(a), the amendment could only be accomplished by leave of the court. Unlike a waiver, which may arguably be accomplished solely through the conduct or statements of the waiving party, amendment of a pleading at this stage is not self actualizing.^[FN9]

This Court is aware of the hoary principal that amendments of pleadings are to be freely granted even in the middle of trial or after trial, however such permissive leave should not be freely given in the face of substantial "prejudice of a special right lost in the interim, [and] a change in position." Ward v. City of Schenectady, 204 A.D.2d 779, 781 (3d Dept. 1994).

Here, this Court was not provided with one scintilla of explanation for the fact that defendant waited until trial commenced to alter their defensive direction. See e.g. Fleet Factors Corp., v. Van Dorn Retail Management, Inc., 180 A.D.2d 556 (lst Dept. 1992) Moreover, extensive discovery was had in this case. Numerous depositions were taken and interrogatories propounded undoubtedly in reliance upon the fact that the plaintiff's decedent's fault was to be placed in issue and, in fact, was placed in issue.

The decedent's fault which in this case meant his decision to continue smoking in the face of the warnings, was imbedded in this case from jury selection through summations. Thus even assuming, arguendo, that the defendant's argument that "it's our defense and we're allowed to waive it" had merit, the question remains, was this Court obligated nonetheless to charge comparative fault upon the request of the plaintiff? Put more succinctly, the question is whether a court is obligated to charge comparative fault even in the absence of a pleading containing this affirmative

defense? ^[FN10]

This court holds that where, as here, comparative fault is a pivotal issue in the case, the Court does not need the defendants' blessings to so charge,^[FN11] and, in its discretion, can certainly deny a request to amend the pleadings. At first glance, it might seem a bit unjust to impose the affirmative burden of proving the plaintiff's fault upon the defense. However, where, as here, the question of the plaintiff's fault is very much in the case, it is the Legislature and not this Court that has made that determination.

The defendants' motion for a new trial upon this ground is denied.^[FN12] [*6]

This constitutes the decision and order of the Court.

J.S.C.