When Can a Person Plead 'Nondelegable Duty' Exemption ?

In Morales v. County of Nassau (94 NY2d 218 [1999]) the plaintiff had pulled her car alongside an area where Nassau County police officers were investigating an accident, jumped out of the vehicle and sought help claiming that her husband who had hidden himself in her vehicle and threatened her with a knife had violated an order of protection. The police removed the husband from the vehicle, permitted the wife to drive away, but did not arrest the husband. Early the next morning, the husband attacked the wife in her driveway with a machete inflicting serious injuries. In Morales (supra), at the precharge conference, the defendant County requested a charge to the jury that liability could be apportioned between itself and the husband. The Trial Judge declined to instruct the jury that it could apportion liability, finding the existence of a strong public policy for the issuance and enforcement of orders of protection and in addressing situations of domestic violence (Morales v. County of Nassau, 175 Misc 2d 35 [1997]). On appeal the Appellate Division held that the "nondelegable duty" exemption did not apply to the facts of the case and that the trial court erred in refusing to issue an apportionment charge (256 AD2d 608 [1998]). on further appeal to the Court of Appeals, Judge Ciparick, writing for the Court, noted that the plaintiff did not plead the intentional tort or nondelegable duty exception, nor did plaintiff move to amend her pleadings until the matter was submitted to the Court of Appeals. Judge Ciparick acknowledged that leave to amend pleadings is liberally granted, but observed that as the Court of Appeals stated in Cole v. Mandell Food Stores (93 NY2d 34, 40 [1999]), " 'a defendant potentially subject to the weight of full judgment must have appropriate notice [of why article 16 might not apply] provided by pleadings.' " (Morales v. County of Nassau, 94 NY2d, at 223.) Judge Ciparick further wrote that "having failed to plead the exemptions in her original complaint, once the County requested an apportionment charge, plaintiff should have moved to amend her pleading to include any possible article 16 exemptions. Plaintiff did not do so then or at any time prior to the presentation of the appeal to this Court." (Supra, at 224.)