S T A T E O F N E W Y O R K ________________________________________________________________________ 448 1997-1998 Regular Sessions I N S E N A T E (Prefiled) __________ January 8, 1997 ___________ Introduced by Sen. GOODMAN -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the civil practice law and rules, the general municipal law and the judiciary law, in relation to reducing the costs of tort liability The People of the State of New York, represented in Senate and Assem- ______________________________________________________________________ bly, do enact as follows: _________________________ 1 Section 1. Section 105 of the civil practice law and rules is amended 2 by adding a new subdivision (r-1) to read as follows: 3 (r-1) Public entity. The term "public entity" means the state, a coun- ______________________________________________________________________ 4 ty, city, town, or village, a public university, board of education, ________________________________________________________________________ 5 community school board, board of cooperative educational services, or ________________________________________________________________________ 6 school district, a fire district, volunteer fire department or fire ________________________________________________________________________ 7 company, a public hospital, clinic, health center, or hospitals corpo- ________________________________________________________________________ 8 ration, a public authority, a public benefit corporation, or any offi- ________________________________________________________________________ 9 cer, agent or employee of a public entity. __________________________________________ 10  2. Section 1411 of the civil practice law and rules, as added by 11 chapter 69 of the laws of 1975, is amended to read as follows: 12  1411. Damages recoverable when contributory negligence or assumption 13 of risk is established. [In] (a) Except as otherwise provided in this __________________________________________ 14 section, in any action to recover damages for personal injury, injury to ___________ 15 property, or wrongful death, the culpable conduct attributable to the 16 claimant or to the decedent, including contributory negligence or 17 assumption of risk, shall not bar recovery, but the amount of damages 18 otherwise recoverable shall be diminished in the proportion which the 19 culpable conduct attributable to the claimant or decedent bears to the 20 culpable conduct which caused the damages. 21 (b) There shall be no right of recovery against a public entity when ______________________________________________________________________ 22 the culpable conduct attributable to the claimant or decedent is found ________________________________________________________________________ 23 to be fifty percent or more of the culpable conduct which caused the ________________________________________________________________________ 24 damages. ________ EXPLANATION--Matter in italics (underscored) is new; matter in brackets _______ [ ] is old law to be omitted. LBD03999-01-7 S. 448 2 1 (c) The provisions and limitations of this section shall apply to all ______________________________________________________________________ 2 claims brought by, or on behalf of, the claimant or decedent, all deriv- ________________________________________________________________________ 3 ative claims by the spouse or other family members of such claimant or ________________________________________________________________________ 4 decedent, and all claims for contribution or common-law indemnification. ________________________________________________________________________ 5  3. The civil practice law and rules is amended by adding a new arti- 6 cle 14-B to read as follows: 7 ARTICLE 14-B ____________ 8 DAMAGE ACTIONS: INJURY CAUSED BY FELONIOUS ACTS _______________________________________________ 9 Section 1414. Injuries arising from felonious acts. ___________________________________________________ 10  1414. Injuries arising from felonious acts. Notwithstanding any ______________________________________________________________________ 11 other provision of law, a person sustaining injury, including death or ________________________________________________________________________ 12 injury to property, while engaged in the commission of any act or acts ________________________________________________________________________ 13 which would constitute a felony under the penal law, or in flight there- ________________________________________________________________________ 14 from, shall have no right to recover damages against a public entity in ________________________________________________________________________ 15 respect thereof, nor shall the estate, or any personal representative, ________________________________________________________________________ 16 spouse or family member have a right to recover damages against a public ________________________________________________________________________ 17 entity in respect of the death of such person. ______________________________________________ 18  4. Section 1601 of the civil practice law and rules, as added by 19 chapter 682 of the laws of 1986 and subdivision 1 as amended by chapter 20 635 of the laws of 1996, is amended to read as follows: 21  1601. Limited liability of persons jointly liable. 1. Notwith- 22 standing any other provision of law, and except as provided in this ______________________________ 23 section, when a verdict or decision in an action or claim for personal ________ 24 injury is determined in favor of a claimant in an action involving two 25 or more tortfeasors jointly liable [or in a claim against the state] and 26 the liability of a defendant is found to be fifty percent or less of the 27 total liability assigned to all persons liable, the liability of such 28 defendant to the claimant for non-economic loss shall not exceed that 29 defendant's equitable share determined in accordance with the relative 30 culpability of each person causing or contributing to the total liabil- 31 ity for non-economic loss; provided, however that the culpable conduct 32 of any person not a party to the action shall not be considered in 33 determining any equitable share herein if the claimant proves that with 34 due diligence he or she was unable to obtain jurisdiction over such 35 person in said action [(or in a claim against the state, in a court of 36 this state)]; and further provided that the culpable conduct of any 37 person shall not be considered in determining any equitable share herein 38 to the extent that action against such person is barred because the 39 claimant has not sustained a "grave injury" as defined in section eleven 40 of the workers' compensation law. 41 2. Notwithstanding any other provision of law, when a verdict or deci- ___________________________________________________________________ 42 sion in an action for personal injury, injury to property or wrongful ________________________________________________________________________ 43 death, is determined in favor of a claimant in an action involving two ________________________________________________________________________ 44 or more tortfeasors, whether or not they be joined in the action, the ________________________________________________________________________ 45 liability of a public entity to the claimant for any injury, loss or ________________________________________________________________________ 46 damage shall not exceed the public entity's equitable share determined ________________________________________________________________________ 47 in accordance with the relative culpability of each person causing or ________________________________________________________________________ 48 contributing to the total liability. ____________________________________ 49 3. Nothing in this section shall be construed to affect or impair any __ 50 right of a tortfeasor under section 15-108 of the general obligations 51 law. 52  5. Subdivision 6 of section 1602 of the civil practice law and 53 rules, as added by chapter 682 of the laws of 1986, is amended to read 54 as follows: 55 6. not apply to any person held liable by reason of his use, opera- 56 tion, or ownership of a motor vehicle or motorcycle, as those terms are S. 448 3 1 defined respectively in sections three hundred eleven and one hundred 2 twenty-five of the vehicle and traffic law; provided, however, that the ______________________________ 3 limitations set forth in this article shall apply to any public entity ________________________________________________________________________ 4 held liable by reason of its use, operation, or ownership of a motor ________________________________________________________________________ 5 vehicle or motorcycle. _____________________ 6  6. The civil practice law and rules is amended by adding a new arti- 7 cle 17 to read as follows: 8 ARTICLE 17 __________ 9 LIABILITY OF PUBLIC ENTITIES ____________________________ 10 Section 1700. Definitions. __________________________ 11 1701. Limited liability of public entities. ___________________________________________ 12  1700. Definitions. As used in this article: the term "non-economic ______________________________________________________________________ 13 loss" shall be as defined in section sixteen hundred of this chapter. _____________________________________________________________________ 14  1701. Limited liability of public entities. Notwithstanding any ______________________________________________________________________ 15 other provision of law, in any action against a public entity for ________________________________________________________________________ 16 personal injury, including injury resulting in death, except an action ________________________________________________________________________ 17 based upon an intentional tort, the following limitations shall apply: ______________________________________________________________________ 18 (a) There shall be no right to recover damages in respect of non-eco- ______________________________________________________________________ 19 nomic loss for any injury, except an injury resulting in death, perma- ________________________________________________________________________ 20 nent loss of a bodily function, dismemberment or significant disfigure- ________________________________________________________________________ 21 ment, unless the fair and reasonable value of all medical services which ________________________________________________________________________ 22 were, or with reasonable certainty will be, incurred in treatment of and ________________________________________________________________________ 23 attributable to such injury equals or exceeds the sum of five thousand ________________________________________________________________________ 24 dollars, whether or not such sum was or will be paid by the injured ________________________________________________________________________ 25 person. _______ 26 (b) There shall be no right to recover damages in respect of non-eco- ______________________________________________________________________ 27 nomic loss in excess of two hundred fifty thousand dollars. ___________________________________________________________ 28 (c) The provisions of this section shall apply to all claims brought ______________________________________________________________________ 29 directly against a public entity by or on behalf of the injured person, ________________________________________________________________________ 30 and all derivative claims by the spouse or other family members of such ________________________________________________________________________ 31 injured person; provided, however, that the total amount of damages ________________________________________________________________________ 32 which may be recovered by the injured person and all such family ________________________________________________________________________ 33 members, when added together, shall not exceed the limitation provided ________________________________________________________________________ 34 by subdivision (b) of this section. ___________________________________ 35 (d) The provisions of this section shall also apply to all claims for ______________________________________________________________________ 36 contribution or common-law indemnification brought in the same, or ________________________________________________________________________ 37 another, action; provided, however, that in computing the amount which ________________________________________________________________________ 38 may be recovered from a public entity, the person claiming contribution ________________________________________________________________________ 39 or common-law indemnification shall be deemed to have paid not more than ________________________________________________________________________ 40 two hundred fifty thousand dollars in respect of the total amount of ________________________________________________________________________ 41 non-economic loss recovered by the injured person, the spouse and other ________________________________________________________________________ 42 family members of such injured person on their derivative claims. _________________________________________________________________ 43  7. The general municipal law is amended by adding a new section 71-c 44 to read as follows: 45  71-c. Liability incident to ownership of dangerous, defective or ______________________________________________________________________ 46 unsafe real property. Notwithstanding any other provision of law, no ________________________________________________________________________ 47 cause of action, accruing within a period of two years subsequent to the ________________________________________________________________________ 48 acquisition of real property by a municipal corporation pursuant to ________________________________________________________________________ 49 foreclosure of a tax lien by an action in rem, shall be maintained ________________________________________________________________________ 50 against any such municipal corporation, or any officer, agent or employ- ________________________________________________________________________ 51 ee thereof, to recover damages for personal injury, including death or ________________________________________________________________________ 52 injury to property sustained or arising by reason of such real property ________________________________________________________________________ 53 being out of repair or in a defective, dangerous or unsafe condition. _____________________________________________________________________ 54  8. Section 474-a of the judiciary law, as amended by chapter 485 of 55 the laws of 1986, is amended to read as follows: S. 448 4 1  474-a. Contingent fees for attorneys in claims or actions for 2 medical, dental or podiatric malpractice, or an action for personal ________________________________ 3 injury, including death. 1. For the purpose of this section, the term ________________________ 4 "contingent fee" shall mean any attorney's fee in any claim or action 5 for medical, dental or podiatric malpractice, or for personal injury, _______________________ 6 including death, whether determined by judgment or settlement, which is ________________ 7 dependent in whole or in part upon the success of the prosecution by the 8 attorney of such claim or action, or which is to consist of a percentage 9 of any recovery, or a sum equal to a percentage of any recovery, in such 10 claim or action. 11 2. Notwithstanding any inconsistent judicial rule, a contingent fee 12 in a medical, dental or podiatric malpractice action, or an action for ____________________ 13 personal injury, including death, shall not exceed the amount of compen- _________________________________ 14 sation provided for in the following schedule: 15 30 percent of the first $250,000 of the sum recovered; 16 25 percent of the next $250,000 of the sum recovered; 17 20 percent of the next $500,000 of the sum recovered; 18 15 percent of the next $250,000 of the sum recovered; 19 10 percent of any amount over $1,250,000 of the sum recovered. 20 3. Such percentages shall be computed on the net sum recovered after 21 deducting from the amount recovered expenses and disbursements for 22 expert testimony and investigative or other services properly chargeable 23 to the enforcement of the claim or prosecution of the action. In 24 computing the fee, the costs as taxed, including interest upon a judg- 25 ment, shall be deemed part of the amount recovered. For the following 26 or similar items there shall be no deduction in computing such percent- 27 ages: liens, assignments or claims in favor of hospitals, for medical 28 care, dental care, podiatric care and treatment by doctors and nurses, 29 or of self-insurers or insurance carriers. 30 4. In the event that claimant's or plaintiff's attorney believes in 31 good faith that the fee schedule set forth in subdivision two of this 32 section, because of extraordinary circumstances, will not give him 33 adequate compensation, application for greater compensation may be made 34 upon affidavit with written notice and an opportunity to be heard to the 35 claimant or plaintiff and other persons holding liens or assignments on 36 the recovery. Such application shall be made to the justice of the 37 trial part to which the action had been sent for trial; or, if it had 38 not been sent to a part for trial, then to the justice presiding at the 39 trial term calendar part of the court in which the action had been 40 instituted; or, if no action had been instituted, then to the justice 41 presiding at the trial term calendar part of the Supreme Court for the 42 county in the judicial department in which the attorney has an office. 43 Upon such application, the justice, in his discretion, if extraordinary 44 circumstances are found to be present, and without regard to the claim- 45 ant's or plaintiff's consent, may fix as reasonable compensation for 46 legal services rendered an amount greater than that specified in the 47 schedule set forth in subdivision two of this section, provided, howev- 48 er, that such greater amount shall not exceed the fee fixed pursuant to 49 the contractual arrangement, if any, between the claimant or plaintiff 50 and the attorney. If the application is granted, the justice shall make 51 a written order accordingly, briefly stating the reasons for granting 52 the greater compensation; and a copy of such order shall be served on 53 all persons entitled to receive notice of the application. 54 5. Any contingent fee in a claim or action for medical, dental or 55 podiatric malpractice, or for personal injury, including death brought __________________________________________ S. 448 5 1 on behalf of an infant shall continue to be subject to the provisions of 2 section four hundred seventy-four of this chapter. 3  9. This act shall take effect immediately except that sections two, 4 four, five and six of this act shall apply only to actions which proceed 5 to trial not less than ninety days after the effective date and section 6 eight of this act shall apply to any retainer agreement executed on or 7 after such date.