Relates to the applicability of certain provisions with respect to persons injured in the use of scaffolding and other devices for use by employees

2 Co-sponsors

• James L. Seward
• Catharine Young

BILL NUMBER:S6816

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 Many insurance carriers who have withdrawn from the market are citing the costs associated with absolute liability pursuant to the so called safe place to work law provided for in Labor Law Sections 240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

A.2528 of 2007-2008: Held in Labor A.1895 of 2009-2010: Referred to Judiciary both years

Fiscal implications

None.

Effective date

Immediately.