Senate Bill S4224

2009-2010 Legislative Session

Relates to the use of market share liability in civil actions brought against certain producers or manufacturers

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Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to judiciary
Apr 17, 2009	referred to judiciary

2009-S4224 (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: General Obligations Law
Laws Affected:: Add §11-108, Gen Ob L; amd §213, CPLR

2009-S4224 (ACTIVE) - Summary

Relates to the use of market share liability for a manufacturer of lead-based paint or a manufacturer of any lead constituent of a lead-based paint in civil actions brought against certain producers or manufacturers; provides for a six year statute of limitations.

2009-S4224 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4224

 TITLE OF BILL :
An act to amend the general obligations law and the civil practice law
and rules, in relation to civil actions brought against certain
producers or manufacturers


 PURPOSE :
To provide a legal remedy mechanism of market share liability so lead
based paint manufacturers will help pay for damages to children who
have been poisoned by lead-based paint.

Adds a new section, 11-108, to the general obligations law and amends
section 213 of the civil practice law and rules providing for market
share liability for a manufacturer of lead-based paint or a
manufacturer of any lead constituent of a lead-based paint.

 EXISTING LAW :
New bill.

 JUSTIFICATION :
Lead poisoning is a very serious health problem for New York's
children.  Estimates are that thousands of children in New York are
poisoned each year, Most housing stock built before the 1970s contain
significant amounts of lead paint which is the chief cause of lead

poisoning in children. Lead is very toxic to small children, with the
possibility of causing severe mental retardation if the poisoning is
not caught at an early age. Current New York law and regulations
require screening for lead exposure at one and two years old.

Unfortunately, a high percentage of children are not screened even
though it is a state requirement. Even if they are screened, it is
most often after the fact--after they have ingested lead paint or
breathed lead paint dust. While efforts must continue to increase lead
exposure testing, it is as important to make certain that children are
not exposed to the lead danger in the first place.  Housing units must
be lead free before children are allowed to live in them. This is
critical to poorer children living in urban areas because they are
more likely to live in housing built before the 1970s when lead-based
paint was discontinued.  The most serious problem in solving the lead
poisoning problem is the amount of money that it will take to
adequately abate the risk in the tens or hundreds of thousands of
housing units that have dangerous amounts of lead in them.

The Alliance to End Childhood Lead Poisoning has stated, "the lead
industry should be held accountable for cleaning up the hazard it
created. For decades, the industry aggressively promoted lead-based
paint as safe for use in houses, apartments, schools, and nurseries,
claiming that lead-based paint promoted health and sanitation.
Although the industry internally acknowledged the hazards of
lead-based paint early in the 1900s, it concealed them from the
public."

 LEGISLATIVE HISTORY :
2005-06: S.3760
2007-08: S.4191 Referred to the Committee on Judiciary

 FISCAL IMPLICATIONS :
None.

 LOCAL FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
Immediately.

2009-S4224 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4224

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 17, 2009
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

AN ACT to amend the general obligations law and the civil  practice  law
  and  rules,  in  relation  to  civil  actions  brought against certain
  producers or manufacturers

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  general  obligations  law is amended by adding a new
section 11-108 to read as follows:
  S 11-108. MARKET SHARE LIABILITY IN CIVIL ACTIONS. 1. ANY PERSON SEEK-
ING DAMAGES IN A CIVIL ACTION FOR INJURIES SUSTAINED AS A RESULT OF  THE
PRESENCE, REMOVAL OR ABATEMENT OF OR EXPOSURE TO LEAD-BASED PAINT IN ANY
RESIDENTIAL, CHILD-CARE OR INFANT DAY-CARE PREMISES WHO ESTABLISHES:
  (A)  THAT  A  PRODUCER  OR MANUFACTURER OF ANY LEAD CONSTITUENT OF THE
PAINT PRESENT IN THE PREMISES CANNOT BE POSITIVELY IDENTIFIED;
  (B) THAT THE LEAD CONSTITUENT OF SAID PAINT WAS A SUBSTANTIAL CONTRIB-
UTING FACTOR IN BRINGING  ABOUT  THE  INJURIES  FOR  WHICH  DAMAGES  ARE
SOUGHT; AND
  (C)  THAT THE PRODUCERS OR MANUFACTURERS OF THE TYPES OR KINDS OF LEAD
CONSTITUENTS FOUND IN SUCH PAINT COMMITTED ACTS OR  OMISSIONS  BY  THEIR
PRODUCTION  OR  MANUFACTURE  OF  SUCH LEAD CONSTITUENTS AS WOULD SUBJECT
THEM TO LIABILITY UNDER THE LAWS OF THE STATE OF NEW YORK FOR THE  INJU-
RIES COMPLAINED OF IF THE PRODUCER OR MANUFACTURER OF THE LEAD CONSTITU-
ENTS  IN  THE PAINT PRESENT IN THE PREMISES COULD BE IDENTIFIED SHALL BE
ENTITLED TO RECOVER ALL DAMAGES SUFFERED FROM ANY PRODUCERS OR  MANUFAC-
TURERS  OF SUCH LEAD CONSTITUENTS WHO ARE JOINED AS PARTIES IN THE CIVIL
ACTION.
  2. ANY DAMAGES AWARDED UNDER SUBDIVISION ONE OF THIS SECTION SHALL  BE
APPORTIONED  IN EQUAL SHARES AMONG THE PRODUCERS OR MANUFACTURERS JOINED
IN THE CIVIL ACTION; PROVIDED, HOWEVER, THAT ANY PRODUCER OR MANUFACTUR-
ER WHICH ESTABLISHES ITS ACTUAL SHARE OF THE TOTAL AMOUNT OF  SUCH  LEAD

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10961-01-9

S. 4224                             2

CONSTITUENTS  USED  IN PAINT PRODUCED OR MANUFACTURED AT THE TIME OF THE
PRODUCTION OR MANUFACTURE OF THE LEAD CONSTITUENT FOUND IN THE PAINT  IN
THE RESIDENTIAL PREMISES WHICH IS THE SUBJECT OF THE CIVIL ACTION, SHALL
BE LIABLE ONLY FOR THAT PORTION OF THE TOTAL DAMAGES REPRESENTED BY SUCH
SHARE.
  3.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISIONS ONE AND TWO OF THIS
SECTION, NO PRODUCER OR MANUFACTURER SHALL BE  LIABLE  FOR  ANY  DAMAGES
UNDER THIS SECTION IF IT ESTABLISHES:
  (A)  THAT  IT  DID  NOT  PRODUCE  OR MANUFACTURE THE LEAD CONSTITUENTS
DETERMINED TO HAVE SUBSTANTIALLY CONTRIBUTED TO THE INJURIES  FOR  WHICH
DAMAGES ARE SOUGHT; OR
  (B)  THAT IT DID NOT PRODUCE OR MANUFACTURE THE TYPES OR KINDS OF LEAD
CONSTITUENTS FOUND IN THE PAINT IN THE RESIDENTIAL PREMISES WHICH IS THE
SUBJECT OF THE CIVIL ACTION DURING THE TIME THAT SAID PAINT WAS PRODUCED
OR MANUFACTURED.
  4. THE REMEDY PROVIDED BY THIS SECTION IS NOT  EXCLUSIVE  AND  SUPPLE-
MENTS ANY EXISTING STATUTORY OR COMMON LAW CAUSE OF ACTION.
  5. A PARENT OR GUARDIAN OF A CHILD FOR WHOM AN ACTION HAS BEEN BROUGHT
FOR  DAMAGES  OR INJURIES CAUSED BY EXPOSURE TO DANGEROUS LEVELS OF LEAD
IN A RESIDENTIAL PREMISE SHALL NOT BE LIABLE  TO  ANY  OTHER  PERSON  OR
ENTITY  FOR CONTRIBUTION PURSUANT TO ARTICLE FOURTEEN OF THE CIVIL PRAC-
TICE LAW AND RULES FOR THOSE DAMAGES OR INJURIES.
  S 2. Section 213 of the civil practice  law  and  rules,  the  section
heading  as  amended by chapter 43 of the laws of 1975, subdivision 2 as
amended by chapter 709 of the laws of 1988, subdivision 6 as amended  by
chapter 248 of the laws of 1965, subdivision 7 as amended by chapter 532
of  the laws of 1963 and as renumbered by chapter 43 of the laws of 1975
and subdivision 8 as amended by chapter 403 of  the  laws  of  2004,  is
amended to read as follows:
  S  213.  Actions to be commenced within six years: where not otherwise
provided for; on contract; on sealed instrument; on bond  or  note,  and
mortgage  upon  real  property;  by  state  based on misappropriation of
public property; based on  mistake;  by  corporation  against  director,
officer  or  stockholder;  based on fraud. The following actions must be
commenced within six years:
  1. an action for which no limitation  is  specifically  prescribed  by
law;
  2.  an  action  upon a contractual obligation or liability, express or
implied, except as provided in section two hundred  thirteen-a  of  this
article  or  article  [2]  TWO of the uniform commercial code or article
[36-B] THIRTY-SIX-B of the general business law;
  3. an action upon a sealed instrument;
  4. an action upon a bond or note, the payment of which is secured by a
mortgage upon real property, or upon a bond  or  note  and  mortgage  so
secured, or upon a mortgage of real property, or any interest therein;
  5. an action by the state based upon the spoliation or other misappro-
priation  of  public  property; the time within which the action must be
commenced shall be computed from discovery by the  state  of  the  facts
relied upon;
  6. an action based upon mistake;
  7.  an  action  by  or on behalf of a corporation against a present or
former director, officer or stockholder for an accounting, or to procure
a judgment on the ground of fraud, or to enforce a liability, penalty or
forfeiture, or to recover damages for waste or for an injury to property
or for an accounting in conjunction therewith[.];

S. 4224                             3

  8. an action based upon fraud; the time within which the  action  must
be  commenced  shall be the greater of six years from the date the cause
of action accrued or two years from the time the plaintiff or the person
under whom the plaintiff claims discovered  the  fraud,  or  could  with
reasonable diligence have discovered it[.] ;
  9.  AN  ACTION  BROUGHT BY OR ON BEHALF OF ANY OWNER OF A RESIDENTIAL,
CHILD-CARE OR INFANT  DAY-CARE  PREMISES  OR  ANY  COUNTY,  CITY,  TOWN,
REGIONAL  SCHOOL DISTRICT, HOUSING AUTHORITY OR THE STATE OF NEW YORK OR
ANY OTHER POLITICAL SUBDIVISION THEREOF TO RECOVER ANY COSTS  ASSOCIATED
WITH  LEAD-BASED  PAINT  RELATED  CORRECTIVE  ACTIONS INCLUDING, BUT NOT
LIMITED TO, THE REMOVAL OR REPLACEMENT OF LEAD-BASED PAINT AND MATERIALS
CONTAINING LEAD-BASED PAINT PURSUANT TO SECTION 11-108  OF  THE  GENERAL
OBLIGATIONS  LAW,  SHALL  BE  COMMENCED ONLY WITHIN SIX YEARS NEXT AFTER
SUCH OWNER,  COUNTY,  CITY,  TOWN,  REGIONAL  SCHOOL  DISTRICT,  HOUSING
AUTHORITY  OR  THE  STATE OF NEW YORK OR ANY OTHER POLITICAL SUBDIVISION
THEREOF KNEW OF THE PRESENCE OF AND THE HAZARD OF DAMAGE CAUSED  BY  THE
PRESENCE  OF  SUCH  LEAD-BASED  PAINT  OR MATERIAL CONTAINING LEAD-BASED
PAINT WITHIN ITS BUILDINGS.
  S 3. This act shall take effect immediately.

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Senate Bill S4224

Sponsored By

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Actions

2009-S4224 (ACTIVE) - Details

2009-S4224 (ACTIVE) - Summary

2009-S4224 (ACTIVE) - Sponsor Memo

2009-S4224 (ACTIVE) - Bill Text download pdf

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Sponsored By

Diane J. Savino

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Actions

2009-S4224 (ACTIVE) - Details

2009-S4224 (ACTIVE) - Summary

2009-S4224 (ACTIVE) - Sponsor Memo

2009-S4224 (ACTIVE) - Bill Text download pdf

Comments