NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2835
SPONSOR: Morelle (MS) TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to the applicability of certain provisions with respect to
persons injured in the use of scaffolding and other devices for use by
employees
PURPOSE: To establish a comparative negligence standard for claims
under Labor Law sections 240 and 241 with respect to a recalcitrant
worker.
SUMMARY OF PROVISIONS: Amends the Civil Practice Law and Rules to add
a new Section 1414. This section applies a comparative negligence stand-
ard as provided for in CPLR 1411 with respect to actions for personal
injury, property damage or wrongful death arising under Labor Law
Sections 240 and 241 to the extent the conduct relates to the following:
a criminal act, use of drugs or alcohol, failure of the employee to use
safety devices furnished at the job site, failure to comply with employ-
er instructions regarding the use of safety devices at the job site, or
failure of the employee to comply with safe work practices in accord
with safety training programs provided by the employer.
JUSTIFICATION: The construction industry is currently facing a
liability insurance crisis. Contractors are receiving insurance cancel-
lation notices and being forced to seek coverage from non-admitted
carriers with exclusions from coverages at exorbitant rate increases.
Many contractors are concerned that existing coverage no matter how
limited will also evaporate from the market. This insurance coverage
crisis is especially difficult for smaller contractors. Many insurance
carriers who have withdrawn from the market are citing the costs associ-
ated with absolute liability pursuant to the so called safe place to
work law provided for in Labor Law Sections 240 and 241.
This legislation attempts to take a limited approach to this problem by
applying comparative negligence standards to a recalcitrant worker. This
approach falls significantly short of repeal but attempts to contain the
costs of absolute liability in a fair manner by making an employee who
directly contributes to his injury liable for the portion of fault
assessed by a jury for his own conduct. This comparative negligence
standard is only applied in limited circumstances such as commission of
a criminal act, use of drugs or alcohol, failure to use safety devices
at the job site, failure to comply with employer instructions regarding
the use of safety devices at the job site or failure of the employee to
comply with safe work practices in accord with a safety program provided
by the employer. The latter provision encourages employers to afford
training certified by OSHA or the State Labor Department to its employ-
ees.
This bill does not take away the right of any injured worker to sue.
Rather it makes a recalcitrant worker responsible for his own conduct.
This approach encourages workplace safety by encouraging workers to take
responsibility for their own safety. There are conflicting court cases
that apply the doctrine of recalcitrant worker and this bill would clar-
ify worker responsibility. This bill would establish a uniform standard
for the application of the recalcitrant worker doctrine. It also is a
modest change in the absolute liability of the safe place to work stat-
ute that remains the only such statute in place among the other 49
states.
LEGISLATIVE HISTORY:
A.2528 of 2007-2008: Held in Labor.
A.1895 of 2009-2010: Referred to Judiciary both years.
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK
________________________________________________________________________
2835
2011-2012 Regular Sessions
IN ASSEMBLY
January 20, 2011
___________
Introduced by M. of A. MORELLE, DESTITO, SCHIMMINGER, V. LOPEZ, MAGEE,
CYMBROWITZ, GALEF, ROBINSON -- Multi-Sponsored by -- M. of A. HOOPER,
LUPARDO, McENENY, TOWNS, WEISENBERG -- read once and referred to the
Committee on Judiciary
AN ACT to amend the civil practice law and rules, in relation to the
applicability of certain provisions with respect to persons injured in
the use of scaffolding and other devices for use by employees
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The civil practice law and rules is amended by adding a new
2 section 1414 to read as follows:
3 § 1414. Applicability to certain actions. 1. In any action or
4 proceeding to recover damages for personal injury, injury to property,
5 or wrongful death pursuant to section two hundred forty, subdivisions
6 one through five of section two hundred forty-one, or section two
7 hundred forty-one-a of the labor law, where safety equipment or devices
8 have been made available, and a person employed or otherwise entitled to
9 the protection of the provisions of such section has failed to follow
10 safety instruction or safe work practices in accordance with training
11 provided, or failed to utilize provided safety equipment or devices, or
12 engaged in a criminal act or was impaired by the use of drugs or alco-
13 hol, and such failure, act or impairment is a proximate cause of an
14 injury to such person, the conduct attributable to such person shall not
15 bar recovery, but the amount of damages otherwise recoverable shall be
16 determined in accordance with section fourteen hundred eleven of this
17 article to the extent that such conduct relates to the commission of a
18 criminal act, impairment caused by the use of drugs or alcohol, the
19 failure to use safety equipment or devices, the failure to comply with
20 instructions or training regarding the use of safety equipment or
21 devices or the failure to otherwise comply with safe work practices in
22 accordance with safety training programs provided to such person. Such
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05792-01-1
A. 2835 2
1 training programs shall include, but shall not be limited to, courses in
2 construction safety and health certified by the United States Occupa-
3 tional Safety and Health Administration or the department of labor.
4 2. Nothing contained in this section shall be deemed to impose or
5 create liability under such sections of the labor law referred to in
6 subdivision one of this section, where a person employed or otherwise
7 entitled to the protection of the provisions of such sections has failed
8 to follow safety instructions or safe work practices in accordance with
9 training provided, or failed to utilize provided safety equipment or
10 devices, or engaged in a criminal act or was impaired by the use of
11 drugs or alcohol, and such failure, act or impairment is the sole proxi-
12 mate cause of an injury to such person.
13 § 2. This act shall take effect immediately and shall apply to all
14 causes of actions accruing on or after such date.
