
    Thomas E. Malloy, Appellant, v Douglas A. Trombley, Respondent.
    Argued February 14, 1980;
    decided April 3, 1980
    
      POINTS OF COUNSEL
    
      Victor A. Rossetti for appellant.
    The Court of Claims finding of contributory negligence on the part of plaintiff after a full and fair opportunity to litigate that issue is a bar to .plaintiff’s action. (Gross & Son v State of New York, 243 NY 629; Matter of Tierney v State of New York, 55 AD2d 158; Planty v Potter De Witt Corp., 27 AD2d 401; Hires v New York Cent. R. R., 24 AD2d 1075.)
    
      
      Morgan L. Jones, Jr., for respondent.
    I. The issue of claimant Malloy’s possible contributory negligence was not "necessarily” decided in the Court of Claims. (Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Vincent v Thompson, 50 AD2d 211; Serrano v Flight Motel, 95 Misc 2d 669.) II. In the Court of Claims action, the claimants did not have a full and fair opportunity to litigate their causes of action vis-á-vis each other.
   OPINION OF THE COURT

Jones, J.

The finding by the Court of Claims, when it dismissed his claim against the State of New York, that plaintiff was contributorily negligent and that his negligence was a substantial factor in causing the accident, bars recovery by him in the present action.

On the evening of October 13, 1974, Douglas A. Trombley, defendant herein, was driving north on Purdy Road, a two-lane, unlighted rural highway in Niagara County, New York. At about 10:30 p.m. he stopped his automobile either on the easterly shoulder of the road or partially on the shoulder and partially in the northbound lane, turned off the lights and began a conversation with his passenger who later became his wife. Shortly thereafter, Trooper Britt, on routine patrol traveling south on Purdy Road, noticed the unlit vehicle and brought his patrol car to a stop opposite the Trombley car, partially on the highway. The trooper left his headlights on and may have activated his emergency lights. He left the patrol car, approached the Trombley car and began questioning its occupants. He then observed an automobile, driven by Thomas E. Malloy, plaintiff herein, approaching from the south in the northbound lane at what he later testified was a normal, although constant, rate of speed, apparently not going to stop or otherwise avoid a collision with the Trombley automobile. The trooper shouted to the passengers in the Trombley car to "get down” and ran for cover behind his patrol car. The Malloy vehicle continued in the northbound lane, its driver unaware of the presence of the Trombley car, and struck the rear of the Trombley car. Both Trombley and Malloy suffered serious injuries.

Malloy and Trombley sued each other in Supreme Court and both filed claims against the State of New York in the Court of Claims, based on alleged negligence on the part of Trooper Britt. The two claims against the State were tried jointly, and after a five-day trial before The Honorable Jeremiah J. Moriarty, the court, which was aware of the pending Supreme Court actions, held both that each claimant had failed to prove negligence on the part of the State and that each was guilty of contributory negligence barring recovery against the State. No appeal was taken by either claimant from the decision of the Court of Claims.

Defendant Trombley thereafter served a supplemental answer in the Supreme Court action against him and moved for summary judgment on the ground that the finding of contributory negligence on the part of Malloy by Judge Moriarty barred recovery by him as plaintiff in his Supreme Court action. Supreme Court denied the motion, but the Appellate Division unanimously reversed and granted summary judgment dismissing the complaint. We now affirm that disposition.

The question before us is one of issue preclusion, sometimes referred to as collateral estoppel, inasmuch as the disposition in the Court of Claims was not made in the course of prior litigation between the same parties but in prior litigation between one of those parties, Malloy, and a third party, the State of New York. The critical question is what effect should be given in the present action to the finding in the Court of Claims action of contributory negligence on the part of Malloy.

Appellant Malloy and the dissenters would invoke the recognized principle that conclusive effect is not to be accorded a finding which is but an alternative ground for the prior court’s decision because it cannot be said to have been essential to the judgment rendered (see Restatement, Judgments 2d, § 68, especially Comment i [Tent Draft No. 4 (April 15, 1977)], pi et seq., pp 11-13), and would apply that principle rigidly to deny issue preclusion in the present instance. We are persuaded that to do so would be improperly to ignore the substantive worth of the finding of the Court of Claims in this instance.

It is entirely accurate to observe that the disposition in the Court of Claims was predicated both on its conclusion that there had been no proof of negligence on the part of the State of New York and on its further finding that claimant Malloy had been contributorily negligent. Indeed in introducing that portion of his decision dealing with contributory negligence on the part of the two claimants, Judge Moriarty forthrightly noted that he proceeded to those issues, "Although unnecessary to a decision herein”. Under a strict application of the alternative determination exception to the rule of issue preclusion, neither the finding of no negligence on the part of the State nor the finding of contributory negligence on the part of the claimant would subsequently be given conclusive effect, for in a logical analysis either finding standing independently would have been sufficient to support the decision of the court; each was a literal alternative. Mechanical application on the basis of such analysis would fail to take into account the vitality of the rationale behind the doctrine of issue preclusion.

There can be no doubt in this instance that the issue of Malloy’s contributory negligence was actually and fully litigated. Although it is true that Malloy and Trombley did not stand toe-to-toe in the Court of Claims, Malloy’s incentive vigorously to oppose a finding of contributory negligence was no less there than it would be in the present Supreme Court action. No suggestion is now advanced that he was in any way handicapped or inhibited in his address to the issue in the Court of Claims; he had full opportunity there and no heavier burden to establish his freedom from contributory negligence with respect to defendant State in that action than with respect to defendant Trombley in the present action. None of the grounds recognized for other exceptions to the general rule of issue preclusion are to be found in this case (see op. tit., § 68.1, p 27 et seq.).

The justification for the alternative determination exception to the general rule is said to be that "the determination in the alternative may not have been as carefully or as rigorously considered as it would have been if it had been necessary to the result, and in that sense it has some of the characteristics of dicta” (op. tit., § 68, Comment i, p 12). The care and attention devoted to the issue by Judge Moriarty in this instance saps such a contention of any vitality. "Although unnecessary to a decision herein, we note that, based upon the evidence presented at trial, neither claimant appears to have established the requisite freedom from culpable conduct necessary for success in a cause of action for negligence which accrued prior to September, 1975. * * * Insofar as the conduct of Mr. Malloy is concerned, there is little direct evidence, apart from the testimony of Trooper Britt as to his brief observations of the approaching vehicle just prior to the collision and the demonstrative photos of the condition of the vehicles thereafter, from which we can infer what observations Mr. Malloy made or actions he took as he approached the scene. Mr. Malloy did not testify at the trial since he is a man of advanced years and has been institutionalized continually since the accident. We are aware that, under the evidentiary rules of Noseworthy v City of New York, 298 NY 76, 80 NE2d 744, and Schechter v Klanfer, 28 NY2d 228, 321 NYS 2d 99, while the burden of proof does not shift on the issue of contributory negligence, the degree of proof necessary to make out a prima facie case on that issue is diminished in a situation such as the one at bar. Nevertheless, it is clear that the tremendous impact with which Mr. Malloy collided with the Trombley vehicle indicates that he proceeded at a high rate of speed towards the scene despite the warning lights from Trooper Britt’s car which should have prompted Mr. Malloy to proceed with caution. Therefore, Mr. Malloy’s conduct on the night of October 13, 1974, can hardly be characterized as reasonable, and he also was chargeable with contributory negligence which bars recovery.”

No persuasive argument is now put forward to support the relevance to this case of the suggestion in the Restatement that, inasmuch as a losing party might be dissuaded from taking an appeal because of the likelihood that an appellate court would sustain at least one of two or more alternative grounds on which the decision below had been predicated, such alternative determinations might not be exposed to appellate review (a safeguard as to their correctness), and therefore the rule of issue preclusion should not be applied to them. Nor is any argument now based on the related notion that there might similarly be little motivation to take an appeal from an alleged error which had no effect on the judgment. Indeed in the context of negligence litigation involving interrelated fact situations these suppositions may be unrealistic. As to the suggestion that to require Malloy to have appealed would be to waste judicial time, it appears that an appeal would be less time consuming and at a less beleaguered level of our court system than would be true in consequence of the new trial which the dissenters would grant.

But there is another element of validating authenticity to Judge Moriarty’s alternative finding of contributory negligence on the part of each claimant. It is accurate to observe, of course, that the dismissal of the claims could have been upheld on appeal had the appellate court affirmed the trial court’s finding of no negligence on the part of the State. That, however, in the circumstances presented could not be considered a foregone conclusion, especially in view of the broader authority of the Appellate Division to substitute its view of the facts on an appeal from a decision of the court following a nonjury trial in the Court of Claims than would be true on appeal from the verdict of a jury. From all that appears, it seems likely that Judge Mori arty thought it prudent in the discharge of his judicial responsibility, following the five-day trial, to make full-blown findings both on the issue of negligence and on the issue of contributory negligence. In the event that the Appellate Division were to disagree on the finding of no negligence, the appeal could still be properly disposed on the basis of the court’s finding of contributory negligence, without the necessity of remittal for a new trial.

For the reasons stated, and without intending to enunciate any broad rule, we hold in this instance that the rule of issue preclusion is applicable notwithstanding that in a precise sense the issue precluded was the subject of only an alternative determination by the trial court. The issue was fully litigated, and the party precluded had full opportunity to be heard and was in no way, motivationally or procedurally, restricted or inhibited in the presentation of his position. Additionally, and critically in our view, the decision of the trial court gives significant internal evidence of the thorough and careful deliberation by that court, both in its consideration of the proof introduced and of the applicable law, and the determination made, although recognized to be an alternative, served a substantial operational purpose in the judicial process, thus negativing any conclusion that the trial court’s resolution was casual or of any lesser quality than had the outcome of the trial depended solely on this issue. (Sheldon v Edwards, 35 NY 279.) We distinguish Halpern v Schwartz (426 F2d 102, 106) in which it was held that "when a prior judgment adjudicating one a bankrupt rests on two or more independent alternative grounds, it is not conclusive as to issues in trial of objections to discharge which issues were necessarily found in order to establish only one of those grounds”. The court reasoned that it would be particularly unwise to apply the rule of issue preclusion to determinations made in the predischarge stages of bankruptcy litigation. (See, also, Developments in the Law — Res Judicata, 65 Harv L Rev 818, 845-847.)

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Fuchsberg, J.

(concurring). As my colleagues’ comments note, the conclusiveness of the effect to be accorded alternative determinations has long been the subject of debate. And, since it is agreed that resolution of this issue should turn on considerations of fairness and justice, it seems to me that an inflexible or, as Judge Jones would term it, a "mechanical” rule in such cases would be undesirable. Instead, while it seems fair to say that any serious doubt that a party has had his day in court ordinarily should be resolved to defeat a claim of estoppel, where it is clear that an alternative issue has been the beneficiary of all the advantages the litigation and decisional processes intend, collateral estoppel effect should not be withheld.

As I read the majority opinion, it lays down no broader rule and, consistent with its import, ties the result to the particular facts and circumstances in this case. My own analysis of these facts, in which I find cause to underline Judge Jones’ own emphasis on the interrelatedness of the role of the three participants and the inevitability of the Trial Judge’s need to evaluate the conduct of each, brings me to the same point. Some elaboration of the considerations which here informed my judgment follow.

The first of these is the unhurried and painstaking care with which, as the record reveals, the Judge conducted all phases of this five-day trial. Moreover, there was nothing complex about the case, centering as it did on a garden variety collision between two motor vehicles in circumstances that left little room for factual dispute. One of the vehicles had been parked, lights out, along an unlit country road in the dead of night; struck from the rear, its driver observed little that preceded the impact. The second automobile, without its driver having slowed its speed or otherwise maneuvered to avoid what its headlights presumably revealed in its path, struck the first car with great force; its driver’s infirmities later would render him unavailable to testify. The chief eyewitness therefore was the State trooper who, in the course of his patrol in the opposite direction, had stopped to investigate the presence of the parked car.

In this factual frame of reference, however it might be legally compartmentalized into elements of negligence and contributory negligence, on liability the Trial Judge’s job was to fix the blame for the accident. In deciding the question— passing on whether any one of the participants had acted without due care and separating out the contribution each had made from that of the others — it is well-nigh inconceivable that he could have arrived at a conclusion as to the existence of negligence or lack of negligence on the part of one of the parties and not done so at the same time as to the others. Thus, absent a more definitive statement to that effect, in the light of his conclusion that the State had not been negligent it is unrealistic to take the Judge’s accurate recital that his findings that Malloy and Trombley were contributorily negligent were "unnecessary to a decision” as any indication that he had not arrived at firm findings of fact on these issues. To the contrary, as I have previously suggested, the qualitatively and quantitatively interrelated conduct of the three participants in the simple event which the Judge was called upon to unravel almost of necessity would have forced him to simultaneously evaluate the negligence of each.

Pragmatically, the Judge’s finding that Malloy and Trombley were each contributorily negligent is not open to any serious dispute. From the beginning, their respective roles in the collision left little question but that each, though perhaps not in equal degree, would not be held blameless. Putting aside their vulnerability to allegations of common-law negligence, motor vehicle code requirements — that cars parked or stopped between sunrise and sunset be lit (e.g., Vehicle and Trafiic Law, § 375, subd 5) and that vehicular headlamps be sufficient to "reveal any person, vehicle or substantial object * * * for a distance of at least three hundred feet” (Vehicle and Trafiic Law, § 375, subd 3) — made the drivers ready prey to the hornbook rule that the violation of a statute or ordinance is at least some evidence of negligence (Martin v Herzog, 228 NY 164, 169 [Cardozo, J.]).

In these circumstances, when Trombley and Malloy each elected to sue the State, they knowingly put these very questions on the line, for, in reason, they could not have assumed these would not be litigated and therefore had to be prepared to meet them with full force in the Court of Claims. In thereby inviting initial determination of the merits of these issues by a Judge sitting without a jury, they had to have understood that the appraisal of the reasonableness of their own conduct conceivably would be made with more, and therefore possibly fatal, meticulousness than perhaps at times might be employed by lay fact finders.

Finally, as to the contention that a decision resting on alternate determinations may discourage dissatisfied litigants from pursuing appeals, putting aside judicial economy (to which, as desirable a goal as it may be, we all agree justice should not defer), suffice it to say that, whatever consideration the practical availability of appeal might deserve in some other factual context, in this case it cannot tip the scales.

Consequently, I vote to affirm.

Gabrielli, J.

(dissenting). I respectfully dissent, for I cannot agree that a factual determination characterized by the finder of fact as "unnecessary to a decision” should be accorded conclusory effect in a subsequent action.

The conclusion reached by the majority of this court is premised upon the perception that the decision of the Court of Claims was grounded upon two alternative determinations: that the State was not negligent, and that both Malloy and Trombley were negligent. Thus, the majority devotes its attention to the question whether issue preclusion principles are applicable to both of two alternative grounds for a decision. Although this question is of considerable academic interest and has been the subject of some dispute (compare Restatement, Judgments, § 68, Comment n, with Restatement, Judgments 2d [Tent Draft No. 4], § 68, Comment i), I do not consider it to be relevant to the disposition of this appeal, for I cannot agree that the Court of Claims decision in the prior case was truly based upon alternative grounds. Rather, as is specifically stated in the opinion of the Court of Claims, the decision in that case was premised upon the determination that the State was not negligent, and the finding of contributory negligence was not necessary to the ultimate result. Thus, the finding of contributory negligence was not an alternative basis for the holding, but rather was a factual determination not essential to the judgment. Accordingly, that determination does not preclude litigation of the contributory negligence issue in the context of the present action (see Restatement, Judgments 2d [Tent Draft No. 4], § 68, Comment h; accord Restatement, Judgments, § 68, Comment o; 5 Weinstein-Korn-Miller, NY Civ Prac, par 5011.28).

It is often rather difficult to determine whether a particular judgment is based upon two alternative grounds, or whether in fact there exists only one ground for the decision and the discussion of other possible routes to the same end is no more than a sort of "factual dicta” (see Developments in the Law— Res Judicata, 65 Harv L Rev 818, 845-847; see, also, Hinchey v Sellers, 7 NY2d 287). In the instant case, however, this potential quandry has been avoided by the frank declaration in the opinion of the Court of Claims that the discussion of contributory negligence was "unnecessary to a decision”. I see no reason to reject that court’s own characterization of its treatment of the contributory negligence issue, for it is the fact finder which is in the best position to know whether it has made a factual determination on the basis of that careful thought and close consideration which is necessary for proper resolution of a dispute, or whether the statement merely serves as an additional justification for a decision actually premised upon other grounds. Since the Court of Claims has specifically declared that its finding of contributory negligence was not the basis of its decision, I see no justification for giving that unnecessary determination conclusory effect in the instant litigation.

Accordingly, I vote to reverse the order appealed from and remit the case to Supreme Court, Niagara County, for further proceedings upon the complaint.

Meyer, J.

(dissenting). Precedent long established gives conclusive effect to prior judgments only where the issue of fact as to which preclusion is sought was essential to the judgment (e.g., Hinchey v Sellers, 7 NY2d 287, 296). On the basis of precedent alone, therefore, reversal is in order.

Reversal is, however, required by logic as well. What the majority is saying, in essence, is that Judge Moriarty’s finding of contributory negligence was essential to the judgment in the sense that it was in the interest of both the parties and the judicial system for him to pass upon the contributory negligence issue even though he could have dismissed the claim solely on the ground that the State was not negligent. Deciding both issues saves the parties and the State the time and money waste of a new trial if the determination on appeal is that he was wrong on the negligence issue. If the only basis for the requirement of essentiality is that dictum may not be carefully considered there is logic in saying that a Judge conscientious enough to decide both issues (and careful enough to label his decision of the contributory negligence issue "unnecessary to a decision herein”) will give no one short shrift.

But the matter does not end there. If well-considered dictum is to be accorded the status of a conclusive finding, then there are here alternate findings of nonnegligence and contributory negligence. The majority, however, rejects the Restatement view (Restatement, Judgments 2d [Tent Draft No. 4], § 68, Comments h, i) that neither alternative finding can be conclusive, reasoning that its predicate, the practical unavailability of an appeal, is "unrealistic” supposition. To me the shoe is on the other foot; it is the majority which indulges unrealistic supposition.

Rules of preclusion, by whatever name, are essentially rules " 'of justice and fairness’ ” (Hinchey v Sellers, supra, at p 294) adopted in furtherance of the policy of conserving judicial resources and protecting the winning litigant against the expense and harassment of relitigating a question already decided. They are, however, a means to an end, not an end in themselves. And because they are rules of policy predicated on fairness, the absence of a right to appeal is held to proscribe preclusion (Restatement, Judgments 2d [Tent Draft No. 4], § 68, Comments h, i; § 68.1, Comment a; Developments in the Law — Res Judicata, 65 Harv L Rev 818, 847). It is the absence of a meaningful appeal upon which the Restatement relies in denying preclusive effect to alternative determinations, reasoning that when the record strongly supports the lower court’s finding on one issue, the losing party will be dissuaded, if not foreclosed, from appealing in order to preserve his position on the (to him) wrongly decided second issue.

Far from being unrealistic, that "supposition” is more than likely why the Court of Claims judgment was not appealed by Malloy, for it was essentially Trombley’s negligence, not any act of the State, which caused Malloy’s injuries. To require Malloy to appeal is to impose upon the court system an appeal destined to failure as to Malloy’s claim against the State, is to waste judicial time and to mandate what appellate counsel generally would consider "unrealistic” action, the deck being as strongly stacked against Malloy as it would be on such an appeal.

Professor Maurice Rosenberg noted in 1969 that "the New York courts have set a hectic pace in expanding the applicability of collateral estoppel” (Rosenberg, Collateral Estoppel in New York, 44 St John’s L Rev 165, 171). In my view our recent decisions have accelerated that expansion until the means threatens to become the end, to the detriment of litigants foreclosed by it, and without reasonable relation to the policy factors giving rise to the doctrine in the first instance.

Whether because the contributory negligence finding was dictum or because it was an alternative finding, I would deny it preclusive effect. I, therefore, vote to reverse and remit for further proceedings.

Chief Judge Cooke and Judges Jasen and Fuchsberg concur with Judge Jones; Judge Fuchsberg concurs in a separate opinion; Judge Gabrielli dissents and votes to reverse in another opinion in which Judges Wachtler and Meyer concur; Judge Meyer concurs in a separate dissenting opinion.

Order affirmed. 
      
      . The accident having occurred on October 13, 1974, the rights of the parties were determined under the law applicable prior to the enactment of CPLR 1411 which adopted the doctrine of comparative negligence (L 1975, ch 69).
     
      
      . It is noted that, according to the Restatement, had an appellate court upheld both determinations made by the trial court, notwithstanding that they were no less alternative, the rule of issue preclusion would apply (Restatement, Judgments 2d, § 68, Comment o [Tent Draft No. 4 (April 15, 1977)], p 17).
     
      
      . I have not overlooked Sheldon v Edwards (35 NY 279). As Halpern v Schwartz (426 F2d 102, 107, n 4) indicates, it is one of three decisions squarely inconsistent with the Restatement’s position. Furthermore, it did not discuss the appeal limitation.
     
      
      . A failure which might only strengthen, as to his claim against Trombley, the preclusive effect of the judgment on the contributory negligence issue (see Restatement, Judgments 2d [Tent Draft No. 4], § 68, Comment o).
      
     
      
      . As noted in Halpern v Schwartz (426 F2d 102, 106), a rule according estoppel effect to alternative findings "at best would preclude some future trial litigation at the expense of currently creating extra appellate litigation.”
     