A6956 Morelle (MS)
Same as S 3453
VOLKER
Civil Practice Law and Rules
TITLE....Enacts the civil justice reform act; repealer
| | | |
| 03/06/01 | referred to judiciary |
| 01/09/02 | referred to judiciary |
MORELLE, SCHIMMINGER, MAGEE
Rpld Art 16 SS1600 - 1603, S214-d, R3211 sub (h), R3212 sub (i), amd CPLR,
generally; rpld S241-a, amd SS240 & 241, add S741, Lab L; amd S720-a, N-PC L;
amd
S388, V & T L; amd S9, add S9-a, Ct Claims Act; amd S50-e, Gen Muni L; amd
S65-a, Town L; amd S6-628, Vil L; amd S474-a, Judy L; amd S9-103, add Art 18-B
SS18-301 - 18-305, Gen Ob L
Enacts the "civil justice reform act " making numerous changes to provisions
of law regulating civil causes of action, including requiring the filing of a
certificate of merit in actions for negligence or malpractice against
professions; establishes joint and several liability equitable share
limitations; establishes statutes of limitations in causes of actions for
product liability and the provision of defective services; repeals and
reenacts provisions on civil limited liability actions; bars
recovery for personal injury to criminal defendants and makes provisions
regarding use
of scaffolding; enacts "equine activity safety code act".
RETRIEVE BILL
STATE OF NEW YORK
________________________________________________________________________
6956
2001-2002 Regular Sessions
IN ASSEMBLY
March 6, 2001
___________
Introduced by M. of A. MORELLE, SCHIMMINGER, MAGEE -- read once and
referred to the Committee on Judiciary
AN ACT to amend the civil practice law and rules, the vehicle and traf-
fic law, the labor law, the not-for-profit corporation law, the court
of claims act, the general municipal law, the town law, the village
law, the judiciary law and the general obligations law, in relation to
enacting the civil justice reform act relating to civil liability and
to repeal article 16, section 214-d, subdivision (h) of rule 3211 and
subdivision (i) of rule 3212 of the civil practice law and rules and
section 241-a of the labor law relating thereto
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. This act shall be entitled and may be referred to as the
2 "civil justice reform act".
3 § 2. Section 3012-a of the civil practice law and rules, as amended
4 by chapter 507 of the laws of 1987, is amended to read as follows:
5 § 3012-a. Certificate of merit in medical, dental and podiatric malp-
6 ractice actions and actions against all other professionals. (a) In any
7 action for medical, dental or podiatric malpractice, or in any action
8 for damages, contribution or indemnity arising out of alleged negligence
9 of a professional subject to the provisions of title VIII of the educa-
10 tion law, the complaint shall be accompanied by a certificate, executed
11 by the attorney for the plaintiff, or other party asserting the cause
12 of action, declaring that:
13 (1) the attorney has reviewed the facts of the case and has consulted
14 with at least one physician in medical malpractice actions, at least one
15 dentist in dental malpractice actions [or], at least one podiatrist in
16 podiatric malpractice actions, or at least one professional in the same
17 profession as the person or persons defendant in the subject suit in
18 other professional malpractice or negligence actions and who is licensed
19 to practice in this state or any other state and who the attorney
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05345-01-1
A. 6956 2
1 reasonably believes is knowledgeable in the relevant issues involved in
2 the particular action, and who has signed an affidavit concluding that
3 there is a reasonable basis for the commencement of an action, such
4 affidavit shall accompany the certificate required by this section, and
5 that the attorney has concluded on the basis of such review [and],
6 consultation and affidavit that there is a reasonable basis for the
7 commencement of such action; or
8 (2) the attorney was unable to obtain the consultation and affida-
9 vit required by paragraph one of this subdivision because a limitation
10 of time, established by article two of this chapter, would bar the
11 action and that the certificate required by paragraph one of this
12 subdivision could not reasonably be obtained before such time expired.
13 If a certificate is executed pursuant to this subdivision, the
14 certificate required by this section shall be filed within ninety
15 days after service of the complaint; or
16 (3) the attorney was unable to obtain the consultation and affidavit
17 required by paragraph one of this subdivision because the attorney had
18 made three separate good faith attempts with three separate physicians,
19 dentists [or], podiatrists or subject professionals, in accordance with
20 the provisions of paragraph one of this subdivision to obtain such
21 consultation and affidavit and none of those contacted would agree to
22 such a consultation and affidavit.
23 (b) Where a certificate is required pursuant to this section, a single
24 certificate shall be filed for each action, even if more than one
25 defendant has been named in the complaint or is subsequently named.
26 (c) Where the attorney intends to rely solely on the doctrine of "res
27 ipsa loquitur", this section shall be inapplicable. In such cases, the
28 complaint shall be accompanied by a certificate, executed by the attor-
29 ney, declaring that the attorney is solely relying on such doctrine and,
30 for that reason, is not filing a certificate required by this section.
31 (d) If a request by the plaintiff for the records of the plaintiff's
32 medical or dental treatment by the defendants has been made and such
33 records have not been produced, the plaintiff shall not be required to
34 serve the certificate required by this section until ninety days after
35 such records have been produced.
36 (e) For purposes of this section, and subject to the provisions of
37 section thirty-one hundred one of this chapter, an attorney who submits
38 a certificate as required by paragraph one or two of subdivision (a) of
39 this section and the physician, dentist [or], podiatrist or subject
40 professionals with whom the attorney consulted shall not be required to
41 disclose the identity of the physician, dentist [or], podiatrist or
42 subject professionals consulted and the contents of such consultation
43 and affidavit; provided, however, that when the attorney makes a claim
44 under paragraph three of subdivision (a) of this section that he was
45 unable to obtain the required consultation and affidavit with the physi-
46 cian, dentist [or], podiatrist or subject professionals, the court may,
47 upon the request of a defendant made prior to compliance by the plain-
48 tiff with the provisions of section thirty-one hundred one of this chap-
49 ter, require the attorney to divulge to the court the names of physi-
50 cians, dentists [or], podiatrists or subject professionals refusing such
51 consultation and affidavit.
52 (f) The provisions of this section shall not be applicable to a plain-
53 tiff who is not represented by an attorney.
54 (g) The plaintiff may, in lieu of serving the certificate required by
55 this section, provide the defendant or defendants with the information
56 required by paragraph one of subdivision (d) of section thirty-one
A. 6956 3
1 hundred one of this chapter within the period of time prescribed by this
2 section.
3 (h) The subject professional or professionals consulted may not be a
4 party to the litigation.
5 (i) For purposes of this section, a complaint shall include a
6 complaint, third party complaint, an answer containing a counterclaim or
7 a cross claim.
8 § 3. Article 16 of the civil practice law and rules is REPEALED and a
9 new article 16 is added to read as follows:
10 ARTICLE 16
11 LIMITED LIABILITY OF PERSONS JOINTLY
12 LIABLE
13 1600. Definitions.
14 1601. Limited liability of persons jointly liable.
15 1602. Application.
16 1603. Burden of proof.
17 § 1600. Definitions. As used in this article, the term "damages" shall
18 include, but in no manner be limited to, all economic and non-economic
19 loss awarded in an action as pecuniary compensation or satisfaction for
20 an injury caused or loss sustained as a result of a breach of a contrac-
21 tual obligation, a tortuous act of commission or omission or any other
22 such incident.
23 § 1601. Limited liability of persons jointly liable. 1. Notwithstand-
24 ing any other provision of law, when a verdict or decision in an action
25 or claim for economic or non-economic damages is determined in favor of
26 a claimant in an action involving two or more wrongdoers jointly liable
27 or in a claim against the state, the liability of each such wrongdoer to
28 the claimant for loss shall not exceed the wrongdoer's equitable share
29 determined in accordance with the relative culpability of each person
30 causing or contributing to the total liability, whether or not such
31 person was or could have been a party to the action.
32 2. Nothing herein shall be construed to affect or impair any right of
33 a wrongdoer pursuant to the provisions of section 15-108 of the general
34 obligations law.
35 § 1602. Application. The limitations set forth in this article shall:
36 1. Apply to any claim for contribution or indemnification but shall
37 not include: (a) a claim for indemnification if, prior to the accident
38 or occurrence on which the claim is based, the claimant and the wrong-
39 doer had entered into a written contract in which the wrongdoer had
40 expressly agreed to indemnify the claimant for the type of loss
41 suffered; or
42 (b) a claim for indemnification by a public employee, including indem-
43 nification pursuant to section fifty-k of the general municipal law or
44 section seventeen or eighteen of the public officers law.
45 2. Not be construed to impair, alter, limit, modify, enlarge, abrogate
46 or restrict (i) the limitations set forth in section twenty-a of the
47 court of claims act; (ii) any immunity or right of indemnification
48 available to or conferred upon any defendant for any negligent or wrong-
49 ful act or omission; (iii) any right on the part of any defendant to
50 plead and prove an affirmative defense as to culpable conduct attribut-
51 able to a claimant or decedent which is claimed by such defendant in
52 diminution of damages in any action; and (iv) any liability arising by
53 reason of a non-delegable duty or by reason of the doctrine of respond-
54 ent superior.
55 3. Not be applied to claims under the workers' compensation law or to
56 a claim against a defendant where the claimant has sustained a "grave
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1 injury" as defined in section eleven of the workers' compensation law to
2 the extent of the equitable share of any person against whom the claim-
3 ant is barred from asserting a cause of action because of the applica-
4 bility of the workers' compensation law; provided, however, that nothing
5 in this section shall be construed to create, impair, alter, limit,
6 modify, enlarge, abrogate or restrict any theory of liability upon which
7 any person may be held liable.
8 4. In conjunction with the other provisions of this article not be
9 construed to create or enlarge actions for contributions or indemnity
10 barred because of the application of the workers' compensation law of
11 this state, any other state or the federal government, or section 18-201
12 of the general obligations law.
13 § 1603. Burden of proof. In any action or claim for damages, a party
14 asserting that the limitations of liability set forth in this article do
15 not apply shall allege, and must prove by a preponderance of the
16 evidence, that one or more of the exemptions set forth in either subdi-
17 vision one of section sixteen hundred one, or section sixteen hundred
18 two of this article, shall apply.
19 § 4. Section 214-d of the civil practice law and rules is REPEALED and
20 a new section 214-d is added to read as follows:
21 § 214-d. Limitations on certain actions against professional engi-
22 neers, architects, landscape architects, land surveyors or construction
23 contractors. 1. Except as otherwise provided in subdivision two of this
24 section, no action to recover damages for injury to the person or for
25 wrongful death or for damage to property nor any action for contribution
26 or indemnity for damages sustained on account of such injury or wrongful
27 death or damage to property arising from any defect in the structure or
28 improvement resulting from the design, planning, or supervision of
29 construction of an improvement to real property shall be brought against
30 a professional engineer, architect, landscape architect, land surveyor
31 or construction contractor more than ten years after the completion of
32 such improvement.
33 2. If, by reason of such defect, an injury to the person or an injury
34 causing wrongful death or an injury to property occurs during the tenth
35 year after completion, an action to recover damages for such injury or
36 wrongful death or damage to property may be brought within one year
37 after the date on which such injury occurred, but in no event may such
38 action be brought more than eleven years after the completion of the
39 improvement.
40 3. Except as provided in subdivision two of this section, in the
41 event the provisions of subdivision one of this section shall have
42 reduced the period during which an action against a professional engi-
43 neer, architect, landscape architect, land surveyor or construction
44 contractor could have otherwise been brought pursuant to any other
45 provision of law, rule or regulation, the claimant shall, in that event,
46 be entitled to institute any such action for a period of one year after
47 the effective date of this section.
48 4. The limitations prescribed by this section shall not apply to
49 actions brought by one in contractual or professional privity with the
50 engineer, architect, landscape architect, land surveyor or construction
51 contractor and shall not be asserted by way of defense by any person in
52 actual possession or control as owner, tenant, or otherwise, of such an
53 improvement at the time any defect in such improvement constitutes the
54 proximate cause of the injury or death for which it is proposed to bring
55 an action.
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1 5. For purposes of this section an improvement shall be deemed to be
2 "completed" (a) when, after the improvement has been started, a perma-
3 nent certificate of occupancy is issued by the municipality in which the
4 improvement is situated, if such is required or is actually issued
5 pursuant to law or regulation; or (b) if a public improvement, upon the
6 acceptance of the improvement by the owner, if a certificate of occupan-
7 cy is not required and has not been issued; or (c) on the earlier of the
8 following dates, if the provisions of paragraphs (a) and (b) of this
9 subdivision do not apply (i) four months prior to the last day on which
10 mechanic's lien, resulting from work performed or materials furnished
11 with respect to such improvement, can be filed; or (ii) upon the owner's
12 final payment for services rendered or materials supplied with respect
13 to such improvement.
14 6. An architect, engineer, landscape architect, or land surveyor shall
15 mean a person licensed or registered as an architect, engineer, land-
16 scape architect, land surveyor or construction contractor, pursuant to
17 the provisions of the education law or any partnership, corporation or
18 any other entity lawfully performing architectural, engineering, land-
19 scape architectural or surveying services.
20 § 5. Subdivisions 4 and 5 of section 214 of the civil practice law and
21 rules, as separately amended by chapters 485 and 682 of the laws of
22 1986, are amended to read as follows:
23 4. an action to recover damages for an injury to property except as
24 provided in [section] sections 214-c, 214-d and 214-f;
25 5. an action to recover damages for a personal injury except as
26 provided in sections 214-b, 214-c, 214-d, 214-f and 215;
27 § 6. Subdivision (h) of rule 3211 and subdivision (i) of rule 3212 of
28 the civil practice law and rules are REPEALED.
29 § 7. The civil practice law and rules is amended by adding a new
30 section 214-f to read as follows:
31 § 214-f. Actions alleging injury from a product; repose. (a) Notwith-
32 standing any law, rule or regulation to the contrary, and subject to the
33 provisions of subdivisions (b), (c) and (d) of this section, no cause of
34 action arising out of the manufacture, sale or marketing of a product
35 may be commenced more than ten years after any such product is delivered
36 to the first purchaser or lessee.
37 (b) The provisions of subdivision (a) of this section shall not bar a
38 product liability action against a subject defendant who shall have made
39 an express warranty, in writing, as to the safety or life expectancy of
40 the specific product involved, which period of warranty is longer than
41 ten years, except that such subdivision shall apply at the expiration of
42 that warranty.
43 (c) If a product liability cause of action accrues during the ten year
44 period described in subdivision (a) of this section but at a time less
45 than two years prior to the expiration of such period, such action may
46 be brought within two years after accrual thereof; provided, however,
47 that in no event may such action be brought more than twelve years after
48 the product was delivered to the first purchaser or lessee.
49 (d) Except as provided in subdivisions (b) and (c) of this section, in
50 the event the provisions of subdivision (a) of this section shall have
51 reduced the period during which a product liability action could have
52 otherwise been brought pursuant to any other provision of law, rule or
53 regulation, the claimant shall, in that event, be entitled to institute
54 any such action for a period of one year after the effective date of
55 this section.
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1 (e) For purposes of this section, "cause of action arising out of the
2 manufacture, sale or marketing of a product" means any action, including
3 but not limited to a contribution, indemnity or restitution action,
4 brought for or on account of personal injury, wrongful death, injury to
5 property or expenditure of funds that is alleged to have resulted from
6 the manufacture, sale, use, construction, design, formulation, develop-
7 ment of standards, preparation, processing, assembly, rebuilding, test-
8 ing, listing, certifying, marketing, advertising, packaging or labeling
9 of any product, or any warning or instruction or lack of warning or
10 instruction associated with that product, regardless of the theory of
11 liability employed.
12 (f) Notwithstanding the foregoing or any other provision of law, rule
13 or regulation, no claim may be brought against a defendant in any civil
14 action if either (i) with respect to all civil actions, including
15 actions subject herein, the claim is based in whole or in part on any
16 act or omission of the defendant which occurred more than twenty-five
17 years before the claim was brought; or (ii) with respect to any such
18 actions subject herein, the claim is brought more than twenty-five years
19 after the date of delivery of the product to the first purchaser or
20 lessee, which product is alleged to have caused the plaintiff's injury
21 or damage.
22 § 8. Paragraph 1 of subdivision (d) of section 3101 of the civil prac-
23 tice law and rules, as amended by chapter 184 of the laws of 1988,
24 subparagraph (ii) as amended by chapter 165 of the laws of 1991, is
25 amended to read as follows:
26 1. Experts. (i) Upon request, each party shall identify each person
27 whom the party expects to call as an expert witness at trial and shall
28 disclose in reasonable detail the subject matter on which each expert is
29 expected to testify, the substance of the facts and opinions on which
30 each expert is expected to testify, the qualifications of each expert
31 witness and a summary of the grounds for each expert's opinion. However,
32 where a party for good cause shown retains an expert an insufficient
33 period of time before the commencement of trial to give appropriate
34 notice thereof, the party shall not thereupon be precluded from intro-
35 ducing the expert's testimony at the trial solely on grounds of noncom-
36 pliance with this paragraph. In that instance, upon motion of any party,
37 made before or at trial, or on its own initiative, the court may make
38 whatever order may be just. [In an action for medical, dental or podia-
39 tric malpractice, a party, in responding to a request, may omit the
40 names of medical, dental or podiatric experts but shall be required to
41 disclose all other information concerning such experts otherwise
42 required by this paragraph.]
43 (ii) In an action for medical, dental or podiatric malpractice, any
44 party may, by written offer made to and served upon all other parties
45 and filed with the court, [offer to disclose the name of, and to] make
46 available for examination upon oral deposition, any person the party
47 making the offer expects to call as an expert witness at trial. Within
48 twenty days of service of the offer, a party shall accept or reject the
49 offer by serving a written reply upon all parties and filing a copy
50 thereof with the court. Failure to serve a reply within twenty days of
51 service of the offer shall be deemed a rejection of the offer. If all
52 parties accept the offer, each party shall be required to produce his or
53 her expert witness for examination upon oral deposition upon receipt of
54 a notice to take oral deposition in accordance with rule thirty-one
55 hundred seven of this [chapter] article. If any party, having made or
56 accepted the offer, fails to make that party's expert available for oral
A. 6956 7
1 deposition, that party shall be precluded from offering expert testimony
2 at the trial of the action.
3 (iii) Further disclosure concerning the expected testimony of any
4 expert may be obtained only by court order upon a showing of special
5 circumstances and subject to restrictions as to scope and provisions
6 concerning fees and expenses as the court may deem appropriate. However,
7 a party, without court order, may take the testimony of a person author-
8 ized to practice medicine, dentistry or podiatry who is the party's
9 treating or retained expert, as described in paragraph three of subdivi-
10 sion (a) of this section, in which event any other party shall be enti-
11 tled to the full disclosure authorized by this article with respect to
12 that expert without court order.
13 § 9. Subdivisions (b) and (e) of section 5031 of the civil practice
14 law and rules, as amended by chapter 485 of the laws of 1986, are
15 amended to read as follows:
16 (b) The court shall enter judgment in lump sum for past damages, for
17 future damages not in excess of [two hundred] fifty thousand dollars,
18 and for any damages, fees or costs payable in lump sum or otherwise
19 under subdivisions (c) and (d) of this section. For the purposes of this
20 section, any lump sum payment of a portion of future damages shall be
21 deemed to include the elements of future damages in the same proportion
22 as such elements comprise of the total award for future damages as
23 determined by the trier of fact.
24 (e) With respect to awards of future damages in excess of [two
25 hundred] fifty thousand dollars in an action to recover damages for
26 dental, medical or podiatric malpractice, the court shall enter judgment
27 as follows:
28 After making any adjustments prescribed by subdivisions (b), (c) and
29 (d) of this section, the court shall enter a judgment for the amount of
30 the present value of an annuity contract that will provide for the
31 payment of the remaining amounts of future damages in periodic install-
32 ments. The present value of such contract shall be determined in accord-
33 ance with generally accepted actuarial practices by applying the
34 discount rate in effect at the time of the award to the full amount of
35 the remaining future damages, as calculated pursuant to this subdivi-
36 sion. The period of time over which such periodic payments shall be made
37 and the period of time used to calculate the present value of the annui-
38 ty contract shall be the period of years determined by the trier of fact
39 in arriving at the itemized verdict; provided, however, that the period
40 of time over which such periodic payments shall be made and the period
41 of time used to calculate the present value for damages attributable to
42 pain and suffering shall be ten years or the period of time determined
43 by the trier of fact, whichever is less. The court, as part of its judg-
44 ment, shall direct that the defendants and their insurance carriers
45 shall be required to offer and to guarantee the purchase and payment of
46 such an annuity contract. Such annuity contract shall provide for the
47 payment of the annual payments of such remaining future damages over the
48 period of time determined pursuant to this subdivision. The annual
49 payment for the first year shall be calculated by dividing the remaining
50 amount of future damages by the number of years over which such payments
51 shall be made and the payment due in each succeeding year shall be
52 computed by adding four percent to the previous year's payment. The
53 addition of four percent to each of the previous year's payment shall be
54 the exclusive measure of interest, inflation, foregone investment oppor-
55 tunity and any other measure of damage. Where payment of a portion of
56 the future damages terminates in accordance with the provisions of this
A. 6956 8
1 article, the four percent added payment shall be based only upon that
2 portion of the damages that remains subject to continued payment. Unless
3 otherwise agreed, the annual sum so arrived at shall be paid in equal
4 monthly installments and in advance.
5 § 10. Subdivisions (b) and (e) of section 5041 of the civil practice
6 law and rules, as added by chapter 682 of the laws of 1986, are amended
7 to read as follows:
8 (b) The court shall enter judgment in lump sum for past damages, for
9 future damages not in excess of [two hundred] fifty thousand dollars,
10 and for any damages, fees or costs payable in lump sum or otherwise
11 under subdivisions (c) and (d) of this section. For the purposes of this
12 section, any lump sum payment of a portion of future damages shall be
13 deemed to include the elements of future damages in the same proportion
14 as such elements comprise of the total award for future damages as
15 determined by the trier of fact.
16 (e) With respect to awards of future damages in excess of [two
17 hundred] fifty thousand dollars in an action to recover damages for
18 personal injury, injury to property or wrongful death, the court shall
19 enter judgment as follows:
20 After making any adjustment prescribed by subdivisions (b), (c) and
21 (d) of this section, the court shall enter a judgment for the amount of
22 the present value of an annuity contract that will provide for the
23 payment of the remaining amounts of future damages in periodic install-
24 ments. The present value of such contract shall be determined in accord-
25 ance with generally accepted actuarial practices by applying the
26 discount rate in effect at the time of the award to the full amount of
27 the remaining future damages, as calculated pursuant to this subdivi-
28 sion. The period of time over which such periodic payments shall be made
29 and the period of time used to calculate the present value of the annui-
30 ty contract shall be the period of years determined by the trier of fact
31 in arriving at the itemized verdict; provided, however, that the period
32 of time over which such periodic payments shall be made and the period
33 of time used to calculate the present value for damages attributable to
34 pain and suffering shall be ten years or the period of time determined
35 by the trier of fact, whichever is less. The court, as part of its judg-
36 ment, shall direct that the defendants and their insurance carriers
37 shall be required to offer and to guarantee the purchase and payment of
38 such an annuity contract. Such annuity contract shall provide for the
39 payment of the annual payments of such remaining future damages over the
40 period of time determined pursuant to this subdivision. The annual
41 payment for the first year shall be calculated by dividing the remaining
42 amount of future damages by the number of years over which such payments
43 shall be made and the payment due in each succeeding year shall be
44 computed by adding four percent to the previous year's payment. The
45 addition of four percent to each of the previous year's payment shall be
46 the exclusive measure of interest, inflation, foregone investment oppor-
47 tunity and any other measure of damage. Where payment of a portion of
48 the future damages terminates in accordance with the provisions of this
49 article, the four percent added payment shall be based only upon that
50 portion of the damages that remains subject to continued payment.
51 Unless otherwise agreed, the annual sum so arrived at shall be paid in
52 equal monthly installments and in advance.
53 § 11. The civil practice law and rules is amended by adding a new
54 article 50-C to read as follows:
55 ARTICLE 50-C
56 LIMITATION ON NONECONOMIC DAMAGES
A. 6956 9
1 5051. Definitions.
2 5052. Damage awards.
3 § 5051. Definitions. As used in this article:
4 1. "Noneconomic damages" means subjective, nonpecuniary damages aris-
5 ing from pain, suffering, inconvenience, physical impairment or disfig-
6 urement, mental anguish, emotional distress, loss of society and compan-
7 ionship, loss of consortium, injury to reputation, humiliation and other
8 nonpecuniary damages.
9 2. "Actual economic damages" means objectively verifiable pecuniary
10 damages arising from medical expenses and medical care, loss of earnings
11 and earning capacity, burial costs, loss of use of property, costs of
12 repair or replacement of property, costs of obtaining substitute domes-
13 tic services, loss of employment, loss of business or employment oppor-
14 tunities, rehabilitation services, custodial care and other pecuniary
15 damages.
16 3. "Personal injury action" means any action, including but in no
17 manner limited to medical, dental and podiatric malpractice actions,
18 whether in tort, contract, or otherwise, in which the plaintiff seeks
19 damages for injury to the person or wrongful death.
20 4. "Compensation" means monetary awards.
21 § 5052. Damage awards. In any personal injury action, the prevailing
22 plaintiff may be awarded:
23 1. Compensation for actual economic damages suffered by the injured
24 plaintiff; and
25 2. Compensation for noneconomic damages suffered by the injured plain-
26 tiff, not to exceed two hundred fifty thousand dollars.
27 § 12. Section 240 of the labor law, the section heading and subdivi-
28 sion 2 as amended by chapter 683 of the laws of 1947 and subdivision 1
29 as amended by chapter 241 of the laws of 1981, is amended to read as
30 follows:
31 § 240. Scaffolding and other devices for use of employees. 1. All
32 contractors and owners and their agents, except owners of one and two-
33 family dwellings who contract for but do not direct or control the work,
34 in the erection, demolition, repairing, altering, painting, cleaning or
35 pointing of a building or structure shall furnish or erect, or cause to
36 be furnished or erected devices or equipment for the performance of such
37 labor, such as scaffolding, hoists, stays, ladders, slings, hangers,
38 blocks, pulleys, braces, irons, and ropes, [and other devices which]
39 where such devices or equipment are necessary to give reasonable and
40 adequate protection and safety to a person so employed. Where such
41 devices or equipment are furnished or erected, the devices or equipment
42 shall be so constructed, placed and operated as to [give proper] provide
43 reasonable and adequate protection and safety to a person so employed.
44 No liability pursuant to this subdivision for the failure to provide
45 protection to a person so employed shall be imposed on professional
46 engineers as provided for in article one hundred forty-five of the
47 education law, architects as provided for in article one hundred forty-
48 seven of such law or landscape architects as provided for in article one
49 hundred forty-eight of such law who do not direct or control the work
50 for activities other than planning and design. This exception shall not
51 diminish or extinguish any liability of professional engineers or archi-
52 tects or landscape architects arising under the common law or any other
53 provision of law.
54 2. [Scaffolding or staging more than twenty feet from the ground or
55 floor, swung or suspended from an overhead support or erected with
56 stationary supports, except scaffolding wholly within the interior of a
A. 6956 10
1 building and covering the entire floor space of any room therein, shall
2 have a safety rail of suitable material properly attached, bolted,
3 braced or otherwise secured, rising at least thirty-four inches above
4 the floor or main portions of such scaffolding or staging and extending
5 along the entire length of the outside and the ends thereof, with only
6 such openings as may be necessary for the delivery of materials. Such
7 scaffolding or staging shall be so fastened as to prevent it from sway-
8 ing from the building or structure.
9 3. All scaffolding shall be so constructed as to bear four times the
10 maximum weight required to be dependent therefrom or placed thereon when
11 in use] Compliance with applicable provisions of the federal Occupa-
12 tional Safety and Health Act and Part 23 of the New York Codes, Rules
13 and Regulations, as amended, shall be prima facie proof of compliance
14 with subdivision one of this section.
15 3. Nothing in this section shall be deemed to relieve a person injured
16 in the erection, demolition, repairing, altering, painting, cleaning or
17 pointing of a building or structure from the consequences of his culpa-
18 ble conduct in accordance with section fourteen hundred eleven of the
19 civil practice law and rules.
20 § 13. Section 241 of the labor law, as added by chapter 1108 of the
21 laws of 1969, the opening paragraph as amended by chapter 670 of the
22 laws of 1980, subdivisions 6, 7 and 8 as amended and subdivision 10 as
23 added by chapter 520 of the laws of 1989, and subdivision 9 as added by
24 chapter 241 of the laws of 1981, is amended to read as follows:
25 § 241. Construction, excavation and demolition work. 1. All contrac-
26 tors and owners and their agents, except owners of one and two-family
27 dwellings who contract for but do not direct or control the work, when
28 constructing or demolishing buildings or doing any excavating in
29 connection therewith, shall [comply with the following requirements:
30 1. If the floors are to be arched between the beams thereof, or if the
31 floors or filling in between the floors are of fireproof material, the
32 flooring or filling in shall be completed as the building progresses.
33 2. If the floors are not to be filled in between the beams with brick
34 or other fireproof material, the underflooring shall be laid on each
35 story as the building progresses.
36 3. If double floors are not to be used, the floor two stories imme-
37 diately below the story where the work is being performed shall be kept
38 planked over.
39 4. If the floor beams are of iron or steel, the entire tier of iron or
40 steel beams on which the structural iron or steel work is being erected
41 shall be thoroughly planked over, except spaces reasonably required for
42 proper construction of the iron or steel work, for raising or lowering
43 of materials or for stairways and elevator shafts designated by the
44 plans and specifications.
45 5. If elevators, elevating machines or hod-hoisting apparatus are used
46 in the course of construction, for the purpose of lifting materials, the
47 shafts or openings in each floor and at each landing level shall be
48 inclosed or fenced in on all sides by a barrier of suitable height,
49 except on two sides which may be used for taking off and putting on
50 materials, and those sides shall be guarded by an adjustable barrier not
51 less than three nor more than four feet from the floor and not less than
52 two feet from the edges of such shafts or openings.
53 6. All areas in which construction, excavation or demolition work is
54 being performed shall be so constructed, shored, equipped, guarded,
55 arranged, operated and conducted] construct, shore, equip, guard,
56 arrange, operate and conduct such work so as to provide reasonable and
A. 6956 11
1 adequate protection and safety to the persons employed therein or
2 lawfully frequenting such places. The commissioner may make rules to
3 carry into effect the provisions of this subdivision, and the owners and
4 contractors and their agents for such work, except owners of one and
5 two-family dwellings who contract for but do not direct or control the
6 work, shall comply therewith.
7 [7. The commissioner may make rules to provide for the protection of
8 workers in connection with the excavation work for the construction of
9 buildings, the work of constructing or demolishing buildings and struc-
10 tures, and the guarding of dangerous machinery used in connection there-
11 with, and the owners and contractors and their agents for such work,
12 except owners of one and two-family dwellings who contract for but do
13 not direct or control the work, shall comply therewith.
14 8.] 2. Compliance with applicable provisions of the federal Occupa-
15 tional Safety and Health Act and Part 23 of the New York Codes, Rules
16 and Regulations, as amended, shall be prima facie proof of compliance
17 with subdivision one of this section.
18 3. Nothing in this section shall be deemed to relieve a person injured
19 in the construction, demolition or excavation of a building or structure
20 from the consequences of his culpable conduct in accordance with section
21 fourteen hundred eleven of the civil practice law and rules.
22 4. The commissioner, as deemed necessary, shall promulgate rules
23 designed for the purpose of providing for the reasonable and adequate
24 protection and safety of persons passing by all areas, buildings or
25 structures in which construction, excavation or demolition work is being
26 performed, and the owners and contractors and their agents for such
27 work, except owners of one and two-family dwellings who contract for but
28 do not direct or control the work, shall comply therewith. The
29 provisions of this subdivision shall not apply to cities having a popu-
30 lation of one million or more.
31 [9.] 5. No liability for the non-compliance with any of the provisions
32 of this section shall be imposed on professional engineers as provided
33 for in article one hundred forty-five of the education law, architects
34 as provided for in article one hundred forty-seven of such law or land-
35 scape architects as provided for in article one hundred forty-eight of
36 such law who do not direct or control the work for activities other than
37 planning and design. This exception shall not diminish or extinguish any
38 liability of professional engineers, architects or landscape architects
39 arising under the common law or any other provision of law.
40 [10.] 6. Prior to advertising for bids or contracting for or commenc-
41 ing work on any demolition work on buildings covered under this section
42 except agricultural buildings as defined in regulations promulgated by
43 the commissioner and except buildings the construction of which was
44 begun on or after January first, nineteen hundred seventy-four, all
45 owners and their agents, except owners of one and two-family dwellings
46 who contract for but do not direct or control the work, shall conduct or
47 cause to be conducted a survey to determine whether or not the building
48 to be demolished contains asbestos or asbestos material as defined in
49 section nine hundred one of this chapter. Such surveys shall be
50 conducted in conformance with rules and regulations promulgated by the
51 commissioner. Information derived from such survey shall be immediately
52 transmitted to the commissioner and to the local governmental entity
53 charged with issuing a permit for such demolition under applicable state
54 or local laws or, if no such permit is required, to the town or city
55 clerk. If such survey finds that a building to be demolished contains
56 asbestos or asbestos material as defined by section nine hundred one of
A. 6956 12
1 [the] this chapter, no bids shall be advertised nor contracts awarded
2 nor demolition work commenced by any owner or agent prior to completion
3 of an asbestos remediation contract performed by a licensed asbestos
4 contractor as defined by section nine hundred one of this chapter.
5 § 14. Section 241-a of the labor law is REPEALED.
6 § 15. Section 1411 of the civil practice law and rules, as added by
7 chapter 69 of the laws of 1975, is amended to read as follows:
8 § 1411. Damages recoverable when contributory negligence or assumption
9 of risk is established. In any action to recover damages for personal
10 injury, injury to property, or wrongful death, the culpable conduct
11 attributable to the claimant or to the decedent, including contributory
12 negligence or assumption of risk, shall not bar recovery, but the amount
13 of damages otherwise recoverable shall be diminished in the proportion
14 which the culpable conduct attributable to the claimant or decedent
15 bears to the culpable conduct which caused the damages; provided, howev-
16 er, that the claimant or the decedent's representative shall be abso-
17 lutely barred from the recovery of any damages where the trier of fact
18 finds that the contributory fault on the part of said claimant or dece-
19 dent constitutes more than fifty percent of the proximate cause of the
20 harm for which recovery is sought.
21 § 16. The labor law is amended by adding a new section 741 to read as
22 follows:
23 § 741. Disclosure of employment related information; presumptions;
24 causes of action; definitions. 1. Any employer who, upon request by a
25 prospective employer or a current or former employee, provides accurate
26 information about a current or former employee's job performance or
27 reasons for separation shall be immune from civil liability and other
28 consequences of such disclosure provided such employer is not acting in
29 bad faith. An employer shall be considered to be acting in bad faith
30 only if it can be shown by a preponderance of the evidence that the
31 information disclosed was knowingly false and deliberately misleading.
32 2. Any prospective employer who reasonably relies on information
33 pertaining to an employee's job performance or reasons for separation,
34 disclosed by a former employer, shall be immune from civil liability
35 including liability for negligent hiring, negligent retention, and other
36 causes of action related to the hiring of such employee, based upon such
37 reasonable reliance, unless further investigation, including but not
38 limited to a criminal background check, is required by law.
39 3. As used in this section, the following words and phrases shall have
40 the following meanings unless the context clearly requires otherwise:
41 (a) "Employer" means any person, firm, or corporation, including the
42 state and its political subdivisions, and any agent thereof with one or
43 more employees, or individuals performing services under any contract of
44 hire or service, expressed or implied, oral or written.
45 (b) "Employee" means any person, paid or unpaid, in the service of an
46 employer.
47 (c) "Prospective employer" means any "employer", as defined in para-
48 graph (a) of this subdivision, to which a prospective employee has made
49 application, either oral or written, or forwarded a resume or other
50 correspondence expressing an interest in employment.
51 (d) "Prospective employee" means any person who has made an applica-
52 tion, either oral or written, or has sent a resume or other correspond-
53 ence indicating an interest in employment.
54 (e) "Job performance" includes, but is not limited to, attendance,
55 attitude, awards, demotions, duties, effort, evaluations, knowledge,
56 skills, promotions, and disciplinary actions.
A. 6956 13
1 § 17. Section 720-a of the not-for-profit corporation law, as added by
2 chapter 220 of the laws of 1986, is amended to read as follows:
3 § 720-a. Liability of [directors, officers and trustees] volunteers.
4 (a) Definitions. For purposes of this section the terms: (1) "volunteer"
5 means an individual performing services for a not-for-profit corporation
6 or a governmental entity who does not receive compensation, or any other
7 thing of value in lieu of compensation, for such services (other than
8 reimbursement for expenses actually incurred or honoraria not to exceed
9 three hundred dollars per year for government service), and such term
10 includes a volunteer serving as a director, officer, trustee or direct
11 service volunteer;
12 (2) "not-for-profit corporation" means any organization exempt from
13 taxation under section 501(c) of the Internal Revenue Code; and
14 (3) "damage or injury" includes physical, nonphysical, economic and
15 noneconomic damage.
16 (b) Immunity from liability. Except as provided in sections seven
17 hundred nineteen and seven hundred twenty of this chapter, and except
18 any action or proceeding brought by the attorney general or, in the case
19 of a charitable trust, an action or proceeding against a trustee brought
20 by a beneficiary of such trust, no [person] volunteer serving [without
21 compensation as a director, officer or trustee of] a not-for-profit
22 corporation[, association, organization or trust described in section
23 501 (c) (3) of the United States internal revenue code] shall be liable
24 to any person other than such corporation, association, organization or
25 trust based solely on his or her conduct in the execution of such office
26 unless the conduct of such [director, officer or trustee] volunteer with
27 respect to the person asserting liability constituted gross negligence
28 or was intended to cause the resulting harm to the person asserting such
29 liability. [For purposes of this section, such a director, officer or
30 trustee shall not be considered compensated solely by reason of payment
31 of his or her actual expenses incurred in attending meetings or other-
32 wise in the execution of such office.]
33 (c) Exceptions. Nothing in this section shall be deemed to grant immu-
34 nity to any person causing damage by his willful, wanton or grossly
35 negligent act of commission or omission; or as the result of his negli-
36 gent operation of a motor vehicle; or for liability which would other-
37 wise arise under section 11-101 of the general obligations law.
38 § 18. Subdivision 3 of section 388 of the vehicle and traffic law, as
39 amended by chapter 552 of the laws of 1962, is amended to read as
40 follows:
41 3. As used in this section, "owner" shall be as defined in section
42 one hundred twenty-eight of this chapter [and their] except in the case
43 of a leased vehicle as defined below, in which case "owner" shall be as
44 defined below. Owner's liability under this section shall be joint and
45 several. If a vehicle be sold under a contract of sale which reserves a
46 security interest in the vehicle in favor of the vendor, such vendor or
47 his assignee shall not, after delivery of such vehicle, be deemed an
48 owner within the provisions of this section, but the vendee, or his
49 assignee, receiving possession thereof, shall be deemed such owner
50 notwithstanding the terms of such contract, until the vendor or his
51 assignee shall retake possession of such vehicle. A secured party in
52 whose favor there is a security interest in any vehicle out of his
53 possession, shall not be deemed an owner within the provisions of this
54 section. If the vehicle is a leased vehicle, the term "owner" shall
55 mean the person to whom the vehicle has been leased, not the person to
56 whom the certificate of title for the vehicle has been issued or
A. 6956 14
1 assigned or to whom the manufacturer's or importer's certificate of
2 origin for the vehicle has been delivered or assigned. For purposes of
3 this section, "leased" means the transfer of the possession or the right
4 to possession of a vehicle to a lessee for a valuable consideration for
5 a continuous period of twelve months or more, pursuant to one or more
6 written agreements.
7 § 19. Legislative findings. The legislature hereby finds and declares
8 that allowing convicted felons or persons acting under the influence of
9 alcohol or illegal drugs, in certain cases, to recover civil damages for
10 injuries suffered during the commission of their crimes is an outrage to
11 the people of the state of New York. It is in the public policy to bar
12 convicted felons from recovering for damages against private citizens
13 and against the government when they, by their criminal behavior, have
14 set in motion a chain of circumstances resulting in their own injury.
15 Accordingly, a felony conviction or proof of certain intoxication shall
16 hereafter bar persons from recovery for injuries suffered during the
17 commission of a crime or while under the influence of alcohol or illegal
18 drugs.
19 § 20. The civil practice law and rules is amended by adding a new
20 section 1411-a to read as follows:
21 § 1411-a. Damages recoverable; criminal conduct or intoxication with
22 alcohol or illegal drugs as a bar to recovery in certain cases. (a)
23 Notwithstanding any other provision of law, rule or regulation, in any
24 action to recover damages for personal injury, injury to property, or
25 wrongful death, culpable criminal conduct or intoxication with alcohol
26 or illegal drugs on the part of a claimant, as provided in subdivision
27 (b) of this section, shall absolutely bar recovery.
28 (b) In any action to recover damages as itemized in subdivision (a) of
29 this section, the showing by a preponderance of the evidence that intox-
30 ication with alcohol or illegal drugs on the part of the claimant was a
31 proximate cause for the specific damages sustained, or culpable criminal
32 conduct attributable to the claimant or to the decedent, arising from
33 the same transaction for which damages are sought and so established by
34 a criminal conviction, shall constitute an absolute bar to recovery.
35 § 21. The civil practice law and rules is amended by adding a new
36 article 14-B to read as follows:
37 ARTICLE 14-B
38 PRODUCT LIABILITY ACTIONS;
39 SPECIFIC DEFENSES
40 1420. Postmanufacture changes.
41 1421. Sealed containers.
42 1422. State of the art design.
43 § 1420. Postmanufacture changes. In a product liability action,
44 evidence of measures taken by the manufacturer or seller after an event,
45 which if taken previously would have made the event less likely to
46 occur, is not admissible to prove negligence or culpable conduct or to
47 prove a defect in the product. Evidence of subsequent measures may,
48 however, be admissible when offered to impeach or as proof of ownership,
49 control, or feasibility of precautionary measures, if such issues are
50 controverted.
51 § 1421. Sealed containers. In any product liability action a party may
52 assert as a defense in such action that he is not the manufacturer of
53 the product in question and that such product was acquired and sold by
54 him in a sealed container or that the product was acquired and sold by
55 him under circumstances in which he was afforded no reasonable opportu-
56 nity to inspect the product in such a manner which would have or should
A. 6956 15
1 have, in the exercise of reasonable care, revealed the existence of the
2 defective condition; provided, however, that the defense set forth here-
3 in will not be available if (a) the manufacturer is not subject to
4 service of process under the laws of the state in which the plaintiff
5 brings the action, or (b) the manufacturer has been judicially declared
6 insolvent and is unable to pay its debts as they become due in the ordi-
7 nary course of business, or (c) the court determines that the plaintiff
8 would be unable to enforce a judgment against the manufacturer. The
9 provisions of this section shall not apply to actions based upon breach
10 of express warranty, negligence or fraudulent misrepresentation of the
11 seller.
12 § 1422. State of the art design. (a) In any product liability action
13 based upon defective design, a party shall not be liable unless the
14 plaintiff proves by a preponderance of the evidence that, at the time
15 the product left the control of the party, there existed a feasible
16 alternative design that would have prevented the harm without substan-
17 tially impairing the usefulness or desirability of the product to users.
18 (b) In any product liability action based upon defective design, a
19 party shall not be liable unless the plaintiff proves by a preponderance
20 of the evidence that the product design was the immediate, physical and
21 producing cause of the injury or damage of which the plaintiff
22 complains, and that, if a feasible alternative design as provided in
23 subdivision (a) of this section was marketed by the defendant, the user
24 of the product would have responded by altering his conduct and thereby
25 would have avoided or reduced the injury or damage of which the plain-
26 tiff complains.
27 (c) In any product liability action based upon defective design, a
28 party shall not be liable unless the plaintiff proves by a preponderance
29 of the evidence that, at the time the product left the control of the
30 party, such party knew or, in light of then existing scientific and
31 technological knowledge, reasonably should have known of the danger that
32 caused the plaintiff's harm.
33 (d) In any product liability action based on defective design, a prod-
34 uct shall not be found to contain a defect or be unreasonably dangerous
35 for its intended use if the personal injury, property damage, or death
36 for which recovery of damages is sought was caused by an inherent aspect
37 of the product about which adequate specifications, instructions, or
38 warnings are provided or which would be recognized as capable of causing
39 harm by the ordinary person who uses or consumes the product with the
40 ordinary knowledge common to the class of persons for whom the product
41 is intended.
42 (e) In any product liability action based on defective design, a prod-
43 uct shall not be found to contain a defect or be unreasonably dangerous
44 for its intended use if the personal injury, property damage, or death
45 for which recovery of damages is sought was caused by an unavoidably
46 unsafe product, as defined in comment K to Section 402A of the Restate-
47 ment (2d) of Torts, and specifications, warnings or instructions are
48 provided to the extent required by this article.
49 § 22. Subdivisions 2, 3 and 4 of section 9 of the court of claims act,
50 subdivision 2 as amended by chapter 40 of the laws of 1977, are amended
51 to read as follows:
52 2. To hear and determine a claim of any person, corporation or munici-
53 pality against the state, a county, city, town, village, school
54 district, or a special district as such term is defined in section one
55 hundred two of the real property tax law for the appropriation of any
56 real or personal property or any interest therein, for the breach of
A. 6956 16
1 contract, express or implied, or for the torts of its officers or
2 employees while acting as such officers or employees, providing the
3 claimant complies with the limitations of this article. For the purposes
4 of this act only, a real property tax lien shall be deemed to be an
5 interest in real property.
6 3. To hear and determine any claim in favor of the state, a county,
7 city, town, village, school district, or a special district as such term
8 is defined in section one hundred two of the real property tax law
9 against the claimant, or against his assignor at the time of the assign-
10 ment.
11 4. To render judgment in favor of the claimant or the state, a county,
12 city, town, village, school district, or a special district as such term
13 is defined in section one hundred two of the real property tax law for
14 such sum as should be paid by or to the state, a county, city, town,
15 village, school district, or a special district as such term is defined
16 in section one hundred two of the real property tax law.
17 § 23. The court of claims act is amended by adding a new section 9-a
18 to read as follows:
19 § 9-a. Construction of "state". For purposes of this act, the term
20 "state" shall be deemed to include the state, a county, city, town,
21 village, school district, or a special district as such term is defined
22 in section one hundred two of the real property tax law whenever such a
23 construction is necessary to effectuate the provisions of this act with
24 respect to the jurisdiction conferred by section nine of this article
25 pertaining to such entities; provided, however, that such construction
26 shall not be given when it would conflict with the provisions of the
27 general municipal law.
28 § 24. Subdivision 4 of section 50-e of the general municipal law, as
29 amended by chapter 745 of the laws of 1976, is amended to read as
30 follows:
31 4. Requirements of section exclusive except as to conditions precedent
32 to liability for certain defects or snow or ice. No other or further
33 notice, no other or further service, filing or delivery of the notice of
34 claim, and no notice of intention to commence an action or special
35 proceeding, shall be required as a condition to the commencement of an
36 action or special proceeding for the enforcement of the claim; provided,
37 however, that nothing herein contained shall be deemed to dispense with
38 the requirement of notice of the defective, unsafe, dangerous or
39 obstructed condition of any street, highway, bridge, culvert, sidewalk
40 or crosswalk, public place, land or building, grading, opening, drain,
41 sewer, park or playground or equipment located therein or any parking
42 field, skating rink or park property, or of the existence of snow or ice
43 thereon, where such notice now is, or hereafter may be, required by law,
44 as a condition precedent to liability for damages or injuries to person
45 or property alleged to have been caused by such condition, and the fail-
46 ure or negligence to repair or remove the same after the receipt of such
47 notice.
48 § 25. Subdivision 1 of section 65-a of the town law, as amended by
49 chapter 771 of the laws of 1963, is amended to read as follows:
50 1. No civil action shall be maintained against any town or town super-
51 intendent of highways for damages or injuries to person or property
52 sustained by reason of any highway, bridge [or], culvert, public place,
53 land or building, grading, opening, drain, sewer, park or playground or
54 equipment located therein or any parking field, skating rink or park
55 property, being defective, out of repair, unsafe, dangerous or
56 obstructed unless written notice of such defective, unsafe, dangerous or
A. 6956 17
1 obstructed condition of such highway, bridge [or], culvert, public
2 place, land or building, grading, opening, drain, sewer, park or play-
3 ground or equipment located therein or any parking field, skating rink
4 or park property, was actually given to the town clerk or town super-
5 intendent of highways, and that there was a failure or neglect within a
6 reasonable time after the giving of such notice to repair or remove the
7 defect, danger or obstruction complained of, or, in the absence of such
8 notice, unless such defective, unsafe, dangerous or obstructed condition
9 existed for so long a period that the same should have been discovered
10 and remedied in the exercise of reasonable care and diligence; but no
11 such action shall be maintained for damages or injuries to person or
12 property sustained solely in consequence of the existence of snow or ice
13 upon any highway, bridge [or], culvert, public place, land or building,
14 grading, opening, drain, sewer, park or playground or equipment located
15 therein or any parking field, skating rink or park property unless writ-
16 ten notice thereof, specifying the particular place, was actually given
17 to the town clerk or town superintendent of highways and there was a
18 failure or neglect to cause such snow or ice to be removed, or to make
19 the place otherwise reasonably safe within a reasonable time after the
20 receipt of such notice.
21 § 26. Section 6-628 of the village law is amended to read as follows:
22 § 6-628 Liability of village in certain actions. No civil action shall
23 be maintained against the village for damages or injuries to person or
24 property sustained in consequence of any street, highway, bridge,
25 culvert, sidewalk [or], crosswalk, public place, land or building, grad-
26 ing, opening, drain, sewer, park or playground or equipment located
27 therein or any parking field, skating rink or park property, being
28 defective, out of repair, unsafe, dangerous or obstructed or for damages
29 injuries to person or property sustained solely in consequence of the
30 existence of snow or ice upon any sidewalk, crosswalk, street, highway,
31 bridge [or], culvert, public place, land or building, grading, opening,
32 drain, sewer, park or playground or equipment located therein or any
33 parking field, skating rink or park property unless written notice of
34 the defective, unsafe, dangerous or obstructed condition or of the
35 existence of the snow or ice, relating to the particular place, was
36 actually given to the village clerk and there was a failure or neglect
37 within a reasonable time after the receipt of such notice to repair or
38 remove the defect, danger or obstruction complained of, or to cause the
39 snow or ice to be removed, or the place otherwise made reasonably safe.
40 § 27. Section 474-a of the judiciary law, as amended by chapter 485 of
41 the laws of 1986, is amended to read as follows:
42 § 474-a. Contingent fees for attorneys in claims or actions for
43 medical, dental or podiatric malpractice, or in any claim or action for
44 property damage or personal injury, including death. 1. For the purpose
45 of this section, the term "contingent fee" shall mean any attorney's fee
46 in any claim or action for medical, dental or podiatric malpractice, or
47 in any claim or action for property damage or personal injury, including
48 death, whether determined by judgment or settlement, which is dependent
49 in whole or in part upon the success of the prosecution by the attorney
50 of such claim or action, or which is to consist of a percentage of any
51 recovery, or a sum equal to a percentage of any recovery, in such claim
52 or action.
53 2. Notwithstanding any inconsistent judicial rule, a contingent fee in
54 a medical, dental or podiatric malpractice action, or in any claim or
55 action for property damage or personal injury, including death, shall
A. 6956 18
1 not exceed the amount of compensation provided for in the following
2 schedule:
3 [30] 25 percent of the first $250,000 of the sum recovered;
4 [25] 20 percent of the next $250,000 of the sum recovered;
5 [20] 15 percent of the next $500,000 of the sum recovered;
6 [15] 10 percent of the next $250,000 of the sum recovered;
7 [10] 5 percent of any amount over $1,250,000 of the sum recovered.
8 3. Such percentages shall be computed on the net sum recovered after
9 deducting from the amount recovered expenses and disbursements for
10 expert testimony and investigative or other services properly chargeable
11 to the enforcement of the claim or prosecution of the action. In comput-
12 ing the fee, the costs as taxed, including interest upon a judgment,
13 shall be deemed part of the amount recovered. For the following or simi-
14 lar items there shall be no deduction in computing such percentages:
15 liens, assignments or claims in favor of hospitals, for medical care,
16 dental care, podiatric care and treatment by doctors and nurses, or of
17 self-insurers or insurance carriers.
18 4. In the event that claimant's or plaintiff's attorney believes in
19 good faith that the fee schedule set forth in subdivision two of this
20 section, because of extraordinary circumstances, will not give him
21 adequate compensation, application for greater compensation may be made
22 upon affidavit with written notice and an opportunity to be heard to the
23 claimant or plaintiff and other persons holding liens or assignments on
24 the recovery. Such application shall be made to the justice of the trial
25 part to which the action had been sent for trial; or, if it had not been
26 sent to a part for trial, then to the justice presiding at the trial
27 term calendar part of the court in which the action had been instituted;
28 or, if no action had been instituted, then to the justice presiding at
29 the trial term calendar part of the Supreme Court for the county in the
30 judicial department in which the attorney has an office. Upon such
31 application, the justice, in his discretion, if extraordinary circum-
32 stances are found to be present, and without regard to the claimant's or
33 plaintiff's consent, may fix as reasonable compensation for legal
34 services rendered an amount greater than that specified in the schedule
35 set forth in subdivision two of this section, provided, however, that
36 such greater amount shall not exceed the fee fixed pursuant to the
37 contractual arrangement, if any, between the claimant or plaintiff and
38 the attorney. If the application is granted, the justice shall make a
39 written order accordingly, briefly stating the reasons for granting the
40 greater compensation; and a copy of such order shall be served on all
41 persons entitled to receive notice of the application.
42 5. Any contingent fee in a claim or action for medical, dental or
43 podiatric malpractice, or in any claim or action for property damage or
44 personal injury, including death, brought on behalf of an infant shall
45 continue to be subject to the provisions of section four hundred seven-
46 ty-four of this [chapter] article.
47 § 28. Section 9-103 of the general obligations law is amended by
48 adding a new subdivision 1-a to read as follows:
49 1-a. No cause of action shall arise against the owner, tenant or
50 lessee of land or premises for injuries to any person, other than an
51 employee or contractor of the owner, tenant or lessee, who is on the
52 land or premises for the purpose of picking and purchasing agricultural
53 or farm products at a farm or "u-pick" operation, unless the person's
54 injuries were caused by a condition which involved an unreasonable risk
55 of harm and all of the following apply:
A. 6956 19
1 a. The owner, tenant or lessee knew, had reason to know of, or reason-
2 ably should have known of the condition or risk.
3 b. The owner, tenant or lessee failed to exercise reasonable care to
4 make the condition safe, or to warn the person of the condition or risk.
5 § 29. Legislative intent. The legislature hereby finds that horse-
6 back riding is both a major recreational sport and a major industry
7 within the state of New York. The legislature further finds: (1) that
8 horseback riding, like many other sports, contains inherent risks
9 including, but not limited to, the risks of personal injury or death or
10 property damage, which may be caused by the propensity of equines to
11 behave in ways not always controllable by the participant; the unpre-
12 dictability of an equine's reaction to such things as sounds, sudden
13 movements, and unfamiliar objects, persons, or other animals; surface or
14 subsurface conditions; collisions with other equines or objects; and the
15 potential of a participant to act in a negligent manner; (2) that it is
16 appropriate, as well as in the public interest, to establish certain
17 duties and obligations of equine sponsors and equine professionals rela-
18 tive to the safety of the horseback riding public; and (3) that it is
19 also necessary and appropriate that the public become apprised of, and
20 understand, the risks inherent in the sport of horseback riding so that
21 they may make an informed decision of whether or not to participate in
22 horseback riding notwithstanding the risks. Therefore, the purpose and
23 intent of this article is to establish guidelines for the conduct of the
24 participants, sponsors and professionals involved in the sport of horse-
25 back riding; to educate the public as to the inherent risks in the sport
26 of horseback riding so as to minimize the risk of injury to persons
27 engaged in the sport of horseback riding; to promote safety in the
28 horseback riding industry, and to preserve the financial sustainability
29 of the equine sponsors and equine professionals engaged in the horseback
30 riding industry.
31 § 30. The general obligations law is amended by adding a new article
32 18-B to read as follows:
33 ARTICLE 18-B
34 EQUINE ACTIVITY SAFETY CODE
35 Section 18-301. Short title.
36 18-302. Definitions.
37 18-303. Liability of persons involved in equine activities.
38 18-304. Limitation of liability.
39 18-305. Posting and notification.
40 § 18-301. Short title. This article may be cited and shall be known
41 as the "equine activity safety code act".
42 § 18-302. Definitions. For the purposes of this article, the
43 following words or phrases shall be defined as follows:
44 1. "Engages in an equine activity" means riding, training, assisting
45 in veterinary treatment of, driving, or being a passenger upon an
46 equine, whether mounted or unmounted, visiting or touring or utilizing
47 an equine facility as part of an organized event or activity, or any
48 person assisting a participant or show management. The term "engages in
49 an equine activity" does not include being a spectator at an equine
50 activity, except in cases where the spectator places himself in an unau-
51 thorized area or in immediate proximity to the equine activity.
52 2. "Equine" means a horse, pony, mule or donkey.
53 3. "Equine activity" means:
54 (a) Equine shows, fairs, competitions, performances, or parades that
55 involve any or all breeds of equines and any of the equine disciplines,
56 including, but not limited to dressage, hunter and jumper horse shows,
A. 6956 20
1 grand prix jumping, three-day events, combined training, rodeos, riding,
2 driving, pulling, cutting, polo, steeplechasing, English and western
3 performance riding, endurance trail riding, gymkhana games, and hunting.
4 (b) Equine training or teaching activities or both.
5 (c) The boarding of equines; including normal daily care thereof.
6 (d) Riding, inspecting, or evaluating by a purchaser or an agent an
7 equine belonging to another, whether or not the owner has received some
8 monetary consideration or other thing of value for the use of the equine
9 or is permitting a prospective purchaser of the equine to ride, inspect,
10 or evaluate the equine.
11 (e) Rides, trips, hunts or other equine activities of any type however
12 informal or impromptu that are sponsored by an equine activity sponsor.
13 (f) Placing or replacing horseshoes or hoof trimming on an equine.
14 (g) Providing or assisting in veterinary treatment of an equine.
15 4. "Equine activity sponsor" means an individual, group, club, part-
16 nership, or corporation, whether or not the sponsor is operating for
17 profit or nonprofit, which sponsors, organizes, or provides the facili-
18 ties for, an equine activity, including but not limited to: pony clubs,
19 4-H clubs, hunt clubs, riding clubs, school and college-sponsored class-
20 es, programs and activities, therapeutic riding programs, stable and
21 farm owners and operators, instructors, and promoters of equine facili-
22 ties, including but not limited to farms, stables, clubhouses, pony ride
23 strings, fairs, and arenas at which the activity is held.
24 5. "Equine professional" means a person engaged for compensation:
25 (a) In instructing a participant or renting to a participant an equine
26 for the purpose of riding, driving or being a passenger upon the equine;
27 (b) In renting equipment or tack to a participant;
28 (c) To provide daily care of horses boarded at an equine facility; or
29 (d) To train an equine.
30 6. "Inherent risks of equine activities" means those dangers or condi-
31 tions which are an integral part of equine activities, including but not
32 limited to:
33 (a) The propensity of equines to behave in ways that may result in
34 injury, harm, or death to persons on or around them;
35 (b) The unpredictability of an equine's reaction to such things as
36 sounds, sudden movement, and unfamiliar objects, persons, or other
37 animals;
38 (c) Certain hazards such as surface and subsurface conditions includ-
39 ing, but not limited to, rocks, forest growth, debris, branches, trees,
40 roots, stumps, or other natural objects;
41 (d) Collisions with other equines or objects; and
42 (e) The potential of a participant to act in a negligent manner that
43 may contribute to injury to the participant or others, such as failing
44 to maintain control over the animal or not acting within his or her
45 ability.
46 7. "Participant" means any person, whether amateur or professional,
47 who engages in an equine activity, whether or not a fee is paid to
48 participate in the equine activity.
49 § 18-303. Liability of persons involved in equine activities. 1.
50 Nothing in section 18-304 of this article shall prevent or limit the
51 liability of an equine activity sponsor or an equine professional, if
52 the equine activity sponsor or equine professional:
53 (a) (1) Provided the equipment or tack, and knew or should have known
54 that the equipment or tack was faulty, and such equipment or tack was
55 faulty to the extent that it did cause the injury; or
A. 6956 21
1 (2) Provided the equine and failed to make reasonable and prudent
2 efforts to determine the ability of the participant to engage safely in
3 the equine activity, and determine the ability of the participant to
4 safely manage the particular equine based on the participant's represen-
5 tations of his ability;
6 (b) Owns, leases, rents, has authorized use of, or is otherwise in
7 lawful possession and control of the land, or facilities upon which the
8 participant sustained injuries because of a dangerous latent condition
9 which was known or should have been known to the equine activity sponsor
10 or equine professional and for which warning signs, pursuant to subdivi-
11 sion four of section 18-302 of this article have not been conspicuously
12 posted;
13 (c) Commits an act of omission that constitutes willful or wanton
14 disregard for the safety of the participant, and that act of omission
15 caused the injury;
16 (d) Intentionally injures the participant.
17 2. This section shall not apply to the horse racing activity author-
18 ized pursuant to article two, three or four of the racing, pari-mutuel
19 wagering and breeding law.
20 § 18-304. Limitation of liability. 1. Except as provided in subdi-
21 vision two of section 18-303 of this article, an equine activity spon-
22 sor, an equine professional, or any other person, which shall
23 include corporation or partnership, shall not be liable for an injury
24 to or the death of a participant resulting from the inherent risks
25 of equine activities and, except as provided in subdivision two of
26 section 18-303 of this article, no participant nor participant's repre-
27 sentative shall make any claim against, maintain an action against, or
28 recover from an equine activity sponsor, an equine professional, or any
29 other person for injury, loss, damage, or death of the participant
30 resulting from any of the inherent risks of equine activities.
31 2. Nothing in this article shall limit the application of the
32 provisions of section 9-103 of this chapter.
33 § 18-305. Posting and notification. 1. Every equine professional
34 shall post and maintain signs which contain the warning notice specified
35 in subdivision two of this section. Such signs shall be placed in a
36 clearly visible location in the proximity of the equine activity. The
37 warning notice specified in subdivision two of this section shall appear
38 on the sign in black letters, with each letter to be a minimum of one
39 inch in height. Every written contract entered into by an equine profes-
40 sional for the providing of professional services, instruction, or the
41 rental of equipment or tack or an equine to a participant, whether or
42 not the contract involves equine activities on or off the location or
43 site of the equine professional's business, shall contain in clearly
44 readable print the warning notice specified in subdivision two of this
45 section.
46 2. The signs and contracts described in subdivision one of this
47 section shall contain the following warning notice:
48 WARNING
49 Under New York Law, an equine professional or equine activity sponsor
50 is not liable for an injury to, or the death of, a participant in equine
51 activities resulting from the inherent risks of equine activities,
52 pursuant to section 18-304 of the General Obligations Law.
53 § 31. Severability. If any section, part or provision of this act
54 shall be declared unconstitutional, invalid or ineffective by any court
55 of competent jurisdiction, such declaration shall be limited to the
56 section, part or provision directly involved in any such controversy in
A. 6956 22
1 which such declaration was made and shall not affect any other section,
2 part or provision thereof.
3 § 32. This act shall take effect immediately, provided, however, that:
4 (a) The amendments effected by the provisions of sections two, three,
5 eleven, fifteen, sixteen, seventeen, eighteen, nineteen, twenty and
6 twenty-one of this act shall apply to subject actions commenced on and
7 after such date;
8 (b) The amendments effected by the provisions of sections four, five
9 and six of this act shall take effect on the first day of January next
10 succeeding the date on which it shall have become a law and shall apply
11 to action commencing on and after such date;
12 (c) The amendments effected by the provisions of section twenty-seven
13 of this act shall apply to retainer agreements executed on and after
14 such date; and
15 (d) The amendments effected by the provisions of section thirty of
16 this act shall take effect on the ninetieth day after it shall have
17 become a law.
REPEAL NOTE.-- Article 16 of the civil practice law and rules,
proposed to be repealed by section three of this act, relates to the
limited liability of persons jointly liable in legal actions and is
replaced by a new article 16 added by section three of this act;
--Section 214-d of the civil practice law and rules, proposed to be
repealed by section four of this act, relates to the limitations on
certain actions against licensed engineers and architects and is
replaced by a new section 214-d as added by section four of this act;
--Section 241-a of the labor law, proposed to be repealed by section
fourteen of this act, relates to the protection of workers in elevator
shafts;
--Subdivision (h) of Rule 3211 of the civil practice law and rules
proposed to be repealed by section six of this act relates to standards
for motions to dismiss certain cases involving licensed architects,
engineers or landscape architects;
--Subdivision (i) of Rule 3212 of the civil practice law and rules
proposed to be repealed by section six of this act relates to standards
for summary judgment in certain cases involving licensed architects,
engineers or landscape architects.
NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(e)
RETRIEVE BILL
BILL NUMBER: A6956
SPONSOR: Morelle (MS)
TITLE OF BILL: An act to amend the civil practice law and rules, the
vehicle and traffic law, the labor law, the not-for-profit corporation
law, the court of claims act, the general municipal law, the town law,
the village law, the judiciary law and the general obligations law, in
relation to enacting the civil justice reform act relating to civil
liability and to repeal article 16, section 214-d, subdivision (h) of
rule 3211 and subdivision (i) of rule 3212 of the civil practice law and
rules and section 241-a of the labor law relating thereto
PURPOSE: This comprehensive and omnibus program of proposed legis-
lation is intended to effect an all encompassing yet fair approach of
modification throughout the general provisions of law for the purpose of
accomplishing seriously necessary and overdue reform in the various
areas of tort law. Included herein are reform measures addressing the
issues of joint and several liability, ten year statutes of repose,
capping of non-economic damage awards, safe workplace, providing that
contributory negligence be a bar to recovery in an action where such was
found to be over fifty percent of the cause for such injury, employer
reference immunity, volunteer immunity, auto leasing vicarious liabil-
ity, felon-recovery bar in subject actions, product liability reform
measures, farm "U-pick" and equine liability.
SUMMARY OF PROVISIONS: Section 1. Short title.
Section 2. Amends CPLR 3012-a to provide that a complaint in a malprac-
tice or negligence action involving a defined professional must be
accompanied by a certificate of merit of an attorney and that at least
one such professional has been consulted and provided an affidavit in
certain cases, and that the attorney has concluded that there is a
reasonable basis for the action. If the attorney is unable to timely
procure such a consultation because of the running of the statute of
limitations or after three good faith attempts to do so, this must be
stated. ‘Where the attorney intends to rely solely on the doctrine of
"res ipsa loquitur," this section is not applicable.
Section 3. Repeals and adds new article 16 to CPLR which abolishes
doctrine of joint and several liability; provides for other exceptions
as contained in law.
Sections 4, 5 and 6 establish a ten year period of repose with respect
to actions against engineers and architects; provides safeguards and
statement of non-applicability for certain grace period.
Section 7. Adds section 214-f to CPLR which establishes ten year period
of repose with respect to product liability actions, further providing
for safeguards, extensions and exceptions as would be equitably proper
with ten year maximum period in certain applications.
Section 8. Amends section 3101 CPLR, in regard to certain provisions
relating to scope of disclosure in expert matters; removes certain
restrictions in existing statute.
Section 9. Amends section 5031 of the CPLR relating to periodic payment
of judgment threshold; reduces same from $250,000 to $50,000 in civil
actions including malpractices.
Section 10. Amends section 5041 of the CPLR similarly as in bill section
9 above stated, in respect to personal injury, damage and wrongful death
actions.
Section 11. Adds article 50-c to the CPLR. Generally caps non-economic
damage awards in negligence actions at $250,000.00.
Sections 12, 13 and 14. These sections would clarify the duties and
obligations of contractors, owners, and employees regarding protection
devices and equipment for construction workers. Subsection (1) of
Section 240 of the Labor Law is amended to require certain contractors
and owners and their agents (1) to provide construction workers devices
and equipment of the type necessary to give reasonable protection to
workers employed on the construction site; and (2) when such devices and
equipment are provided, to construct, place, and operate such devices
and equipment as to provide reasonable protection to those workers.
Former subsections 2 and 3 of Section 240 are repealed. Two new
provisions are added. As amended, subsection (2) states that if a
contractor or owner complies with applicable state and federal health
and safety regulations, their compliance shall be PRIMA FACIE proof of
compliance with subsection 1. As amended, subsection 3 conforms section
240 with Section 1411 of the Civil Practice Law and Rules. Section 241
is amended to conform with Section 240 as amended. Subsections 1-5 and
7 are effectively repealed. Subsection 6 becomes subsection 1.
Subsections 2 and 3, as amended, conform with subsections 2 and 3 of
Section 240. Section 241(a) is repealed. Subdivision 8 of Section 1602
of the CPLR as enacted by chapter 682 of the Laws of 1986 is repealed.
Section 15. Modifies comparative negligence principles to provide that
where contributory negligence of plaintiff constitutes more than fifty
percent of cause of injury, there shall be a bar to any recovery.
Section 16. Provides that any employer-reference, granted upon request
by a prospective employer or a current or former employee, providing
information about a current or former employee's job performance or
reasons for separation shall be immune from civil liability provided
such employer is not acting in bad faith. Its purpose is to exempt from
civil liability an employer who provides accurate information about a
current or former employee's job performance or reasons for separation.
Section 17. Exempts volunteers performing services for a not-for-profit
corporation from civil liability for causes of action arising out of the
execution of their office. The bill will amend section 720-a of the
Not-for-Profit Corporation Law to extend to many not-for-profit organ-
izations volunteers limited immunity from liability which is now enjoyed
only by 501 (c) (3) corporations. The bill defines "volunteer," "not-
for-profit corporation" and "damage or injury" and grants limited tort
liability. No limitation on liability would be extended to willful,
wanton or grossly negligent acts, liability arising out of the use of an
automobile, or to liability which would otherwise arise under the dram
shop act.
Section 18. Amends the current vicarious liability statute, Section 388
of the Vehicle and Traffic Law, placing responsibility upon the individ-
ual lessee.
Section 19. Legislative findings.
Section 20. Bars actions for injury or damages sustained by person while
intoxicated by alcohol, illegal drugs or while in the commission of a
crime.
Section 21. Adds Article 14-B to CPLR relative to product liability
actions.
Sections 22 and 23. Adds provisions to include municipalities, school
districts and special districts within the jurisdiction of the Court of
Claims.
Sections 24, 25 and 26. Amends the General Municipal Law, the Town Law
and the Village Law, generally adding provisions which effectively
expand the scope of those items included under the prior written notice
provisions in subject instances of alleged liability of certain munici-
palities.
Section 27. Amends 474-a of the Judiciary Law to adopt medical malprac-
tice contingency fee schedule to all actions for personal injury and,
further, reduces contingency fees in such cases by five percent through-
out the schedule.
Section 28. Amends 9-l03, General Obligations Law. Limits the liability
of farmers at "u-pick" operations or farms from customers' injuries
unless the injuries were caused due to a condition which represented an
unreasonable risk of harm.
Sections 29 and 30. Adds Art. 18-A ••l8-20l - 18-205, General Obli-
gations Law. Provides that an equine activity sponsor, an equine profes-
sional, or any other person, which shall include a corporation or part-
nership, shall not be liable for an injury to or the death of a
participant resulting from the inherent risks of equine activities,
except under certain circumstances. The bill will address the following:
defines not only those risks inherent to the sport for which liability
protection will be afforded, but also establishes affirmative acts for
which stable owners, activity sponsors, and equine businesses are
responsible. Does not limit liability in cases of negligence by the
stable owner or activity sponsor. The legislation does not impact upon
horse races either positively or negatively. Requires detailed posting
and notification of persons engaging in equine activities concerning the
inherent risks of the sport, and mandates that participants recognize
these risks and accept responsibility for themselves when they choose to
participate. Affects only those liabilities incurred after the passage
of the act.
Section 31. Severability clause.
Section 32. Effective date.
JUSTIFICATION: Section 2. Many members of the professions have found
themselves to be the targets of frivolous lawsuits. The CPLR 3012-a
certificate of merit requirement is presently in effect for medical,
dental and podiatric malpractice suits. This legislation seeks to ensure
that plaintiff's counsel has consulted with other stated professionals
as relevant, to ascertain that a valid cause of action exists. Litigants
will not be barred from bringing suit, but absent a favorable opinion
from a knowledgeable subject professional as to the merits, it is antic-
ipated that actions may be ended in the early stages, thus saving both
parties the expense of litigation, and relieving court congestion. This
reform is supported by 82% of New Yorkers, according to a 1997 statewide
Zogby poll.
Section 3. Law now generally provides for full joint liability even
where one tortfeasor may be proven to be of an extremely limited level
of responsibility compared to the other(s). This proposal would limit
the amount of damage in comparison to a finding of degree of culpability
of each defendant with appropriate exceptions. In order to bring greater
predictability and equity into the insurance market place and to further
lessen the impact of "deep pocket" litigation, the modification of joint
and several liability should be extended to all losses. This reform is
supported by 79% of New Yorkers, according to a 1997 statewide Zogby
poll.
Sections 4, 5, 6 and 7. Places a limit of ten years on commencing prod-
uct liability after product or service enters stream of commerce, i.e.,
delivered to first consumer. Provides extensions on late discovery,
excepts intentional acts and generally protects the consumer while yet
providing a more than reasonable limitation for the purpose of
protection of manufacturers, selling agents and marketers of general
products and services. The Jones Commission recommends that -- lacking
federal agreement -- it is in New York State's best interest to enact a
package of product liability reforms for application in New York State.
The basic reforms in product liability law in this bill are necessary to
limit the expanded liability which has been created in Court decisions
over the past two decades. This reform is supported by 58% of New York-
ers, according to a 1997 statewide Zogby poll.
Section 8. Prompt disclosure of information on expert witnesses will
lead to less surprise and facilitate settlement of claims with merit.
Professional malpractice, including medical malpractice would benefit
from the same disclosure provisions as other tort claims.
Section 9. Reducing the threshold for periodic payments of judgments
will reduce the administrative costs of litigation and allow a more cost
efficient method of compensating individuals injured as a result of
accidents and other errors in judgment.
Section 10. This section (and Sec.9) is intended to address the ambigui-
ties which led to the decision in SCHULTZ V. HARRISON RADIATOR, 90 N.Y.
2d 311, 660 N.Y.S. 2d 685, holding that plaintiff could present expert
evidence on inflation even though trial court was required to add 4%
adjustment to structured payment portion of damage award.
Section 11. Non-economic damages are awards for other than payments for
medical care, rehabilitative care, lost wages and other actual damages
and out of pocket expenses. Non-economic damages are subjective, intan-
gible and unmeasurable, as pain and suffering. Capping these specific
awards at $250,000.00 would greatly reduce general liability and malp-
ractice insurance rates while still affording a substantial amount of
allowable finding for damages of this nature. This reform is supported
by 73% of New Yorkers, according to a 1997 statewide Zogby poll.
Sections 12, 13 and 14. These amendments are necessary as a result of
Court of Appeals' decisions misinterpreting the clear legislative intent
of Section 240. See ZIMMER V. CHEMUNG COUNTY PERFORMING ARTS, 65 N.Y. 2d
513 (1985); BLAND V. MANOCHERIAN, 66 N.Y. 2d 452 (1985). Indeed, in the
ZIMMER decision, Chief Judge Wachtler, in a dissenting opinion, appealed
for legislative reform of Section 240.
These decisions by the Court of Appeals have held that a contractor or
owner is liable for virtually any injury suffered by construction work-
ers on a job site, regardless of whether the contractor or owner had
done everything they should have done to protect the worker from injury
and regardless of whether or not the injury was caused by the worker's
own negligence. These decisions have made contractors and owners insur-
ers of workplace safety, and in essence, have made them a second source
of workers' compensation for workers who suffer injuries on the job
site.
The theory of strict liability advanced by the Court of Appeals' deci-
sions has resulted in a substantial increase in the number of civil
suits filed against contractors and owners. These lawsuits can only
exacerbate the liability insurance crisis faced by construction industry
employers. Without legislative relief, construction firms, employing
thousands of workers, will be unable to find affordable insurance and
will be forced to shut their doors. As Chief Judge Wachtler observed in
ZIMMER, the ultimate victims of the current statute may be the workers
it was designed to protect: "Because I read the statutory policy under-
lying Labor Law Section 240 as encouraging owners and contractors to
provide safety devices where possible, and not to provide insurance
coverage to their employees (who are already covered by workers' compen-
sation), I respectfully dissent, AND URGE THE LEGISLATURE TO AMEND THE
STATUTE AND MAKE THIS INTENT MORE CLEAR (emphasis added). The imposition
of insurers liability on owners and contractors will not further the
goal of protecting workers because the absent devices cannot protect
them. It will, however, hurt the building industry and perhaps cost
those already adequately protected workers their jobs." This bill is
designed to remedy the obvious problems with the Court of Appeals inter-
pretation of Section 240 noted by Chief Judge Wachtler. It would impose
a negligence liability standard on contractors and owners, rather than
the insurers' liability imposed by the Court of Appeals. It would also
provide guidance to contractors and owners who must comply with a
confusing array of federal, state and local building codes and regu-
lations by making compliance with the Federal OSHA regulations PRIMA
FACIE evidence of compliance with Section 240. It would also promote
workplace safety by making workers responsible for their own culpable
acts. Finally, it would be a significant step towards alleviating the
serious liability insurance problems confronting both the construction
industry and, ultimately , all those whose livelihood depends on a
vigorous construction industry. This reform is supported by 82% of New
Yorkers, according to a 1997 statewide Zogby poll.
Section 15. Common sense dictates that if a plaintiff is found to be
more than fifty percent responsible for the damages or injuries he or
she shall have sustained, there should be no recovery from any defendant
for the remaining fault. This reform is supported by 81% of New Yorkers,
according to a 1997 statewide Zogby poll.
Section 16. Under current law, employers face the untenable situation
where they can be sued both for sharing information about a current or
previous employee, or for refusing to share such information. Employers
should be free to share pertinent information requested, in good faith,
concerning an employee without fear of liability. This legislation would
provide limited liability to employers who provide accurate information
about an employee's job performance. The legislation would preclude
employer's from civil liability provided that the information provided
is accurate and the employer is not acting in bad faith. An employer is
considered acting in bad faith if it can be shown by a preponderance of
the evidence that the information disclosed was knowingly false and
deliberately misleading. An employer's evaluation shall be based on
attendance, attitude, awards, demotions, duties, effort, evaluations,
knowledge, skills, promotions and disciplinary actions. This reform is
supported by 72% of New Yorkers, according to a 1997 statewide Zogby
poll.
Section 17. Exempts volunteers performing services for a not-for-profit
corporation from civil liability when acting in good faith, and within
the scope of their designated responsibilities. Present law provides a
limitation of liability for directors, officers or trustees of 501
(c)(3) corporations in recognition of the need to encourage people to
serve on the boards of such charitable organizations. The New York limi-
tation is less expansive than similar liability limits already in effect
in other states. The need to expand the limitation has been recognized
at the federal level through the introduction of legislation in both
houses of Congress which would require states to limit liability of
volunteers of not-for-profit entities or face reduction of social
services block grants. The bill recognizes the need to encourage people
to serve as volunteers for not-for-profit entities. At the same time,
this legislation seeks to strike a balance by not granting a limitation
of liability for certain activities. This reform is supported by 81% of
New Yorkers, according to a 1997 statewide Zogby poll.
Section 18. Under 388 of the New York Vehicle and Traffic Law, all vehi-
cle owners in the state can be held vicariously liable for the negli-
gence of others in the use or operation of the vehicles they own.
Section 388 is intended to create incentives for vehicle owners properly
to maintain, and to police the use of, their vehicles. In the abstract,
New York's vicarious liability statute makes public policy sense. An
individual vehicle owner should take care to ensure that his or her car
or truck is kept in good working order and that only responsible persons
are allowed to drive it. There is much to commend a system that encour-
ages such behavior.
This analysis breaks down, however, in the case of a vehicle leasing
company whose ownership of the vehicles it leases is, for these
purposes, largely a matter of legal form. The long-term corporate lessor
generally does not maintain its vehicles and has no effective means to
regulate their use. Under the typical consumer lease, the lessor trans-
fers possession and control of the vehicle to a lessee for an extended
period, with no real means for the lessor to oversee the situation
during that time. Thus, this lessor is in no meaningful way an "owner"
within the contemplation of the New York vicarious liability statute;
rather, it is effectively in the same position as a lien-holding bank in
traditional financed sales who has no vicarious liability exposure.
There is simply no practical reason why a vehicle lessor should be
responsible for the negligence of its lessee or others solely because it
owns the vehicle.1 Indeed, this allocation of liability turns the public
policy objective of the rule on its head. Not only does the New York
statute impose liability on a party who has little if any control of the
situation, the law
FAILS to impose liability on the one actor who can
and should modify its behavior in response -- the lessee. As between the
lessee and the lessor, the lessee is the person who can attend to the
maintenance of the vehicle and restrict access to the driver's seat. But
the New York law does not impose liability on lessees for failing to
perform these gatekeeping functions. As a consequence, the risks to
which the balance of the motoring public is exposed are not reduced.
Sections 19 and 20. There have been cases of convicted felons success-
fully suing a municipality for damages and injuries sustained while in
the commission of a crime. This proposal fairly bars any individual from
recovery in such cases and, further, in cases where the subject was
proven to be intoxicated by alcohol or illegal drugs. Such awards defy
common sense, encourage a cynical attitude toward justice and promote a
free booting mentality among criminals who, if they cannot generate
substantial revenue from their crimes, then get a second bite of the
apple by suing the municipality when they are apprehended. By creating
an absolute bar to recovery, this bill would save municipalities and
private individuals substantial attorney's fees and the often frustrat-
ing involvement in litigation. Immediately upon conviction of the
claimant/plaintiff, the conviction could be used as conclusive proof on
a motion for summary judgement dismissing the complaint. This reform is
supported by 86% of New Yorkers, according to a 1997 statewide Zogby
poll.
Section 21. While it is preferable that the tort law establishing the
liability of product manufacturers and sellers be national in scope, it
is becoming increasingly apparent that Congress is unable to resolve
this plaguing problem. The Jones Commission recommends that -- lacking
Federal agreement -- it is in New York State's best interest to enact a
package of product liability reforms for application in New York State.
The basic reforms in product liability law in this section are necessary
to limit the expanded liability which has been created in court deci-
sions over the past three decades.
Sections 22 and 23. Court of Claims actions do not involve juries which
often tend to view municipalities as a deep pocket defendant. Includes
school districts and special districts with municipalities as within the
jurisdiction of the State Court of Claims. This provision would move
substantially toward fair verdicts against such defendants and necessar-
ily reduce insurance premiums and, ultimately, taxes imposed for such
expenses.
Sections 24, 25 and 26. The basic theory of prior written notice
provisions is to insure reasonable notice is given of a dangerous or
defective condition, affording a municipality a fair opportunity to
correct the same. Vandalism or natural forces could cause change from
one day to the next. Recently, the Court of Appeals has held to a very
strict interpretation of the prior written notice provisions (Walker v
Town of Hempstead, 618 N.Y.S. 2nd 758, 1994) specifically holding that
only those items particularly enumerated by section 50-e could be
covered in the prior written notice categories. Legislation, therefore,
becomes essential to clarify the subject law and afford reasonable
protection to municipalities and their taxpayers.
Section 27. Extensive studies have indicated that plaintiffs receive
only 40% of the total damage award with the remaining going to expert
witnesses, lawyers and court costs. Unlimited contingent fees promote
unscrupulous solicitation and prosecution of cases and encourage liti-
giousness causing unnecessary judicial congestion. This reform is
supported by 90% of New Yorkers, according to a 1997 statewide Zogby
poll.
Section 28. Limits the liability of farmers at "u-pick" operations or
farms from customers' injuries in cases absent gross negligence or
disregard for safety. Those entering such areas are generally aware of
the inherent dangers, i.e., ruts in the dirt, mud by the crops, etc. and
are basically assuming the risk of normal presence and movement in such
farm locales. At the present time, the General Obligations Law, 9-103,
has no liability limits at farms where the customers pick the crop. With
the rising costs of liability insurance, the "u-pick" farm operations
have had to incur these increases in premiums. This bill would assist in
eliminating unfounded suits against growers and thus reducing some
outrageous insurance costs to these farmers. However, in no way would it
remove the liability of an owner, tenant or lessee for injuries caused
by a condition which involved an unreasonable risk of harm. By limiting
the liability of farm owners, it would provide an equitable and fair
balance of responsibility between the farmers and customers who choose
to pick their own fruits and vegetables. This reform is supported by 70%
of New Yorkers, according to a 1997 statewide Zogby poll.
Sections 29 and 30. Persons electing to ride horses for pleasure, compe-
tition or other personal reasons should obviously be aware of the inher-
ent risk involved in such activity. Absent gross negligence on the part
of the vendor, no liability for injury or damage while engaged in such
activity should ensue. This proposal provides that an equine activity
sponsor, an equine professional, or any other person, which shall
include a corporation or partnership, shall not be liable for an injury
to or the death of a participant resulting from the inherent risks of
equine activities with appropriate exceptions. Over the course of many
years the issue of liability has become more and more critical to the
equine industry, not only in New York, but nationally. Large claims paid
by insurers to persons injured in accidents involving horses has driven
the cost of liability insurance for stable owners and sponsors of recre-
ational horse activities to intolerable levels. In many cases, horse
farmers are risking the loss of their farms simply because they cannot
afford the premium or cannot obtain coverage at all. At least 30 other
states have passed, or are considering legislation nearly identical to
this proposal. The passage of this bill will take NYS one step closer to
its goal of preservation of farmland and open space by allowing horse
farms to exist and operate, while at the same time protecting the rights
of persons injured due to the negligence of another.
LEGISLATIVE HISTORY: 1999-00,S.2277/A.4509. First introduced in 1998
as S.6661 in its omnibus format combining the proposals of past intended
legislation with new and additional issues.
FISCAL IMPLICATIONS: According to the Public Policy Institute, in
1996 New York State's "Tort Tax" amounted to $14.3 billion or a tax on
every New York State citizen of $787 per person. This tort tax is equiv-
alent to 2.35% of our state's estimated gross state product. This tort
tax is approximately 28% above the national average. This bill, to the
extent it brings New York tort law more in line with the national aver-
age, would cut this tax by roughly $800 million a year.
EFFECTIVE DATE: This act shall take effect immediately, with addi-
tional provisions where appropriate.
‘Of course, if the lessor is itself negligent, it should be (and gener-
ally is) held responsible for resulting damages.