STATE OF NEW YORK
       ________________________________________________________________________
 
                                         6547
 
                              2001-2002 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 6, 2001
                                      ___________
 
       Introduced  by M. of A. BRAGMAN -- read once and referred to the Commit-
         tee on Codes
 
       AN ACT to amend the civil practice law and rules, in relation to  recov-
         ery by intoxicated parties
 
         The  People of the State of New York, represented in Senate and Assem-
       bly, do enact as follows:
 
    1    Section 1. Section 1411 of the civil practice law and rules, as  added
    2  by chapter 69 of the laws of 1975, is amended to read as follows:
    3    § 1411. Damages recoverable when contributory negligence or assumption
    4  of  risk  is established.  [In] 1. a. Except as set forth in paragraph b
    5  of this subdivision, in any action to recover damages for personal inju-
    6  ry, injury to property, or wrongful death, the culpable conduct  attrib-
    7  utable to the claimant or to the decedent, including contributory negli-
    8  gence  or  assumption of risk, shall not bar recovery, but the amount of
    9  damages otherwise recoverable shall  be  diminished  in  the  proportion
   10  which  the  culpable  conduct  attributable  to the claimant or decedent
   11  bears to the culpable conduct which caused the damages.
   12    b. Upon the trial of any action to recover damages for personal  inju-
   13  ry,  injury  to  property,  or  wrongful death, wherein the issue of the
   14  claimant's or decedent's intoxication shall have been raised, the  court
   15  shall admit evidence of the amount of alcohol in the blood of the claim-
   16  ant  or  decedent as established by a chemical test administered to such
   17  claimant or decedent including,  but  not  limited  to,  chemical  tests
   18  administered  pursuant  to the provisions of: (i) section eleven hundred
   19  ninety-four of the vehicle and traffic law, (ii) paragraph (b) of subdi-
   20  vision three of section six hundred  seventy-four  of  the  county  law,
   21  (iii)  section forty-nine-a of the navigation law, or (iv) section 25.24
   22  of the parks, recreation and historic preservation law.
   23    2. The following effect shall be given to  evidence  of  blood-alcohol
   24  content, as determined by the tests set forth in paragraph b of subdivi-
   25  sion one of this section:
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09496-01-1

       A. 6547                             2
 
    1    a.  Evidence  that  there was more than .05 of one per centum but less
    2  than .10 of one per centum by weight of alcohol in the blood of a claim-
    3  ant or decedent shall constitute prima facie evidence that such claimant
    4  or decedent was impaired. If unrebutted,  such  evidence  of  impairment
    5  shall constitute a complete bar to any recovery on behalf of such claim-
    6  ant  or  decedent  where the proof shall show (i) that the impairment of
    7  the claimant or decedent was a proximate cause of  the  occurrence,  and
    8  (ii)  that the culpable conduct of such claimant or decedent contributed
    9  fifty percent or more to the causation of the occurrence,  or  that  the
   10  culpable  conduct  of  such  claimant  or  decedent contributed at least
   11  equally to the causation of the occurrence if the action was  instituted
   12  against more than one defendant.
   13    b.  Evidence that the blood of a claimant or decedent contained .10 of
   14  one per centum or more, by weight of  alcohol,  shall  constitute  prima
   15  facie evidence that such claimant or decedent was intoxicated and shall,
   16  if  unrebutted,  constitute  a complete bar to any recovery on behalf of
   17  such claimant or decedent when such intoxication was a  proximate  cause
   18  of the occurrence.
   19    §  2.  This  act  shall take effect on the first day of September next
   20  succeeding the date on which it shall have become a law.

 
BILL NUMBER: A6547
 
SPONSOR: Bragman

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to recovery by intoxicated parties
 
 
PURPOSE:
 
This bill would bar recovery of damages in personal injury, property
damage and wrongful death actions, if there is evidence that the intoxi-
cation or impairment of the claimant or decedent was a proximate cause
of the incident.
 
 
SUMMARY:
 
This bill amends §  1411 of the Civil Practice Law and Rules (CPLR) to
bar recovery of damages in actions involving personal injury, property
damage or wrongful death when there is evidence that:
 
* the claimant or decedent had a blood alcohol content (BAC) of between
.05 and .10 and the claimant's culpable conduct contributed at least
equally to the causation of the incident; or
 
* the claimant or decedent had a BAC level of .10 or more, and intoxica-
tion was a proximate cause of the occurrence.
 
In these cases, the court would be required to admit evidence of the
intoxication or impairment established by a chemical test administered
to the claimant or decedent, regardless of whether the test is admissi-
ble in other proceedings or was conducted outside the authority of
enumerated statutes.
 
 
JUSTIFICATION:
 
Accidents which involve alcohol use account for hundreds of fatalities,
thousands of injuries, and millions of dollars in property damage each
year. Countless lawsuits are brought as a result of such accidents, in
some cases even by those whose intoxication caused or greatly contrib-
uted to the resulting injuries and damages.  Although several amendments
have strengthened criminal sanctions for such conduct, civil law has not
been altered to establish similar deterrents.
 
This bill seeks to discourage individuals from drinking and driving, and
from engaging in other potentially injurious activities alter excessive
alcohol consumption, by preventing recovery where the claimant's alcohol
consumption caused injury to people or property.  Specifically, recovery
would be barred upon a finding that the claimant or decedent had a BAC
between .05% and .10%, and that person's culpable conduct contributed at
least equally to the accident. Recovery would also be barred, regardless
of the degree of the claimant's or decedent's culpable conduct, if the
BAC exceeded .10% and the intoxication caused the incident.
 
 
LEGISLATIVE HISTORY:
 
This bill was introduced as S.5215 during the 1997-98 legislative
session.
 
 
FISCAL IMPLICATIONS:
 
Savings to the state could be realized as a result of reduced payments
to persons who bring suit but whose intoxication was a proximate cause
of the incident which is the subject of the action.
 
 
EFFECTIVE DATE:
 
The bill takes effect on the first day of September following enactment.