Applies laws of comparative negligence and assumption of risk to employees et al. injured in the use of scaffolding and other devices in certain cases outside N.Y. city

Summary of provisions

Section one of the bill amends the Civil Practice Law and Rules (CPLR) by adding new Section 1414. Subdivision one makes necessary an application of comparative negligence standards as provided in CPLR 1411 when determining the amount of recovered damages to be granted with respect to actions for personal injury, property damage or wrongful death arising under Labor Law Sections 240 and 241 to the extent that the conduct relates to the following: a criminal act, the use of drugs or alcohol, failure of the employee to comply with safe work practices in accord with safety training programs provided by the employer, if such failure, act, or impairment is the proximate cause of injury.

Subdivision two provides that nothing contained in this section shall be deemed to impose or create liability under such sections of the Labor Law 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, Of 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 proximate cause of an injury to such person.

Subdivision three provides that this section shall not apply to actions or proceedings wherein personal injury, injury to property, or wrongful death is alleged or subsequently determined to have occurred, or arisen out of an occurrence, within a city having a population of one million or more.

Section two provides for an immediate effective date.

Existing law

Does not apply a comparative negligence standard as provided for in CPLR 1411 when determining damage recovery.

Justification

The construction industry is currently facing a liability insurance crisis. Contractors are receiving insurance cancellation notices and are being forced to seek coverage from non-admitted carriers with exclusions from coverage at exorbitant rate increases. Many contractors are concerned that existing coverage, no matter how limited, will 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 Many insurance carriers who have withdrawn from the market are citing the costs associated with absolute liability pursuant to Labor Law Sections 240 and 241.

While employers have provided the training and safety devices to give workers a safe place to work, some courts in New York have failed to recognize these efforts, refusing even to allow introduction of evidence of the safety training and equipment provided to employees in a 240 case. Abuse of the provisions of Section 240 have led to skyrocketing insurance rates and reductions in available coverage, and threaten the viability of construction contractors and subcontractors, who cannot afford to pay exorbitant insurance rates for 240 coverage. This bill would make a worker responsible in limited situations for his or her own injury including failure to follow provided safety training or a specific failure to use supplied safety equipment. This bill protects worker safety while establishing a fair playing field for a builder facing a liability lawsuit.

This legislation is limited to occurrences outside the City of New York, as the less populated suburban and upstate areas to which this act would apply generally have less congested construction sites and smaller scale construction projects.

Legislative history

2009-2010 S. 4899 Referred to Codes (Aubertine)

Fiscal implications

None.

Effective date

This act shall take effect immediately and shall apply to all causes of actions accruing on or after such date.