Relates to the applicability of certain provisions with respect to persons injured in the use of scaffolding and other devices for use by employees.
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 standard 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 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 safety training programs provided by the employer.
JUSTIFICATION: The construction industry is currently facing a liability insurance crisis. Contractors are receiving insurance cancellation 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 This insurance coverage crisis is especially difficult for smaller contractors Many insurance carriers who have withdrawn from the market are citing the costs associated with absolute liability pursuant to the so called safe place to work law provided for in Labor Law Sections 240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 employees.
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 clarify 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 statute that remains the only such statute in place among the other 49 states.
LEGISLATIVE HISTORY: 2011-12: S.6816/A.2835 Referred to Judiciary 2009-10: S.4037/A.1895 Referred to Judiciary 2007-08: S.4317/A.2528 Held for consideration in Labor
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 111 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sen. GALLIVAN -- read twice and ordered printed, and when printed to be committed 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: Section 1. The civil practice law and rules is amended by adding a new section 1414 to read as follows: S 1414. APPLICABILITY TO CERTAIN ACTIONS. 1. IN ANY ACTION OR PROCEEDING TO RECOVER DAMAGES FOR PERSONAL INJURY, INJURY TO PROPERTY, OR WRONGFUL DEATH PURSUANT TO SECTION TWO HUNDRED FORTY, SUBDIVISIONS ONE THROUGH FIVE OF SECTION TWO HUNDRED FORTY-ONE, OR SECTION TWO HUNDRED FORTY-ONE-A OF THE LABOR LAW, WHERE SAFETY EQUIPMENT OR DEVICES HAVE BEEN MADE AVAILABLE, AND A PERSON EMPLOYED OR OTHERWISE ENTITLED TO THE PROTECTION OF THE PROVISIONS OF SUCH SECTION HAS FAILED TO FOLLOW SAFETY INSTRUCTION OR SAFE WORK PRACTICES IN ACCORDANCE WITH TRAINING PROVIDED, OR FAILED TO UTILIZE PROVIDED SAFETY EQUIPMENT OR DEVICES, OR ENGAGED IN A CRIMINAL ACT OR WAS IMPAIRED BY THE USE OF DRUGS OR ALCO- HOL, AND SUCH FAILURE, ACT OR IMPAIRMENT IS A PROXIMATE CAUSE OF AN INJURY TO SUCH PERSON, THE CONDUCT ATTRIBUTABLE TO SUCH PERSON SHALL NOT BAR RECOVERY, BUT THE AMOUNT OF DAMAGES OTHERWISE RECOVERABLE SHALL BE DETERMINED IN ACCORDANCE WITH SECTION FOURTEEN HUNDRED ELEVEN OF THIS ARTICLE TO THE EXTENT THAT SUCH CONDUCT RELATES TO THE COMMISSION OF A CRIMINAL ACT, IMPAIRMENT CAUSED BY THE USE OF DRUGS OR ALCOHOL, THE FAILURE TO USE SAFETY EQUIPMENT OR DEVICES, THE FAILURE TO COMPLY WITH INSTRUCTIONS OR TRAINING REGARDING THE USE OF SAFETY EQUIPMENT OR DEVICES OR THE FAILURE TO OTHERWISE COMPLY WITH SAFE WORK PRACTICES IN ACCORDANCE WITH SAFETY TRAINING PROGRAMS PROVIDED TO SUCH PERSON. SUCH TRAINING PROGRAMS SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, COURSES INEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01953-01-3 S. 111 2
CONSTRUCTION SAFETY AND HEALTH CERTIFIED BY THE UNITED STATES OCCUPA- TIONAL SAFETY AND HEALTH ADMINISTRATION OR THE DEPARTMENT OF LABOR. 2. NOTHING CONTAINED IN THIS SECTION SHALL BE DEEMED TO IMPOSE OR CREATE LIABILITY UNDER SUCH SECTIONS OF THE LABOR LAW REFERRED TO IN SUBDIVISION ONE OF THIS SECTION, WHERE A PERSON EMPLOYED OR OTHERWISE ENTITLED TO THE PROTECTION OF THE PROVISIONS OF SUCH SECTIONS HAS FAILED TO FOLLOW SAFETY INSTRUCTIONS OR SAFE WORK PRACTICES IN ACCORDANCE WITH TRAINING PROVIDED, OR FAILED TO UTILIZE PROVIDED SAFETY EQUIPMENT OR DEVICES, OR ENGAGED IN A CRIMINAL ACT OR WAS IMPAIRED BY THE USE OF DRUGS OR ALCOHOL, AND SUCH FAILURE, ACT OR IMPAIRMENT IS THE SOLE PROXI- MATE CAUSE OF AN INJURY TO SUCH PERSON. S 2. This act shall take effect immediately and shall apply to all causes of actions accruing on or after such date.