Senate Bill S4452

                                 BILL NUMBER:  S4452

 TITLE OF BILL :
An act to amend the civil practice law and rules, in relation to
exempting parties liable for failure to obey or enforce certain orders
of protection or temporary orders of protection in domestic violence
or domestic relations matters from the provisions of article sixteen
of such law, entitled "limited liability of persons jointly liable"


 PURPOSE OR GENERAL IDEA OF BILL :
This bill would exempt parties liable for failure to obey or enforce
domestic violence orders of protection or temporary orders of
protection from limited liability provisions.

 SUMMARY OF PROVISIONS :
Adds a new paragraph to section 1602 of the civil practice law and
rules to exempt domestic violence from apportionment of non-economic
damages and restore the rule of joint liability to defendants found
liable for failure to obey or enforce an order of protection.

 JUSTIFICATION :
This bill re-enforces New York's zero-tolerance policy about domestic
violence. In the last decade New York State has enacted legislation to
give force and effect to orders of protection - a critical tool
against domestic violence. The family court act, domestic relations
              

laws and criminal procedure laws all have been amended to compel
public intervention to prevent domestic violence, protect against
violence between family members and punish those who abuse their
families. This is a priority for New York State.

Each year thousands of domestic violence victims go to court in New
York State to seek justice and protection. Orders of protection,
however, are effective only if they are enforced. New York has enacted
laws and adopted policies to encourage, even mandate, police
involvement in domestic violence. The Family Court Act gives the
police the authority to investigate and arrest a person who violates
an order of protection. FCA §168. The 1994 Family Protection and
Domestic Violence Intervention Act goes further: it mandates arrest
for violations of orders of protection as well as felony and some
misdemeanor violence among family members. CPL § 140.10. As a result,
the police have explicit authority and "non-delegable" responsibility
to enforce court orders of protection.

This bill permits the victim to recover non-economic as well as
economic damages from any or all defendants found liable by a court or
jury after a trial on the merits of the action. Current law, as
interpreted by the New York State Court of Appeals, does not.

RANGOLAN V COUNTY OF NASSAU, 725 NYS2d 611 (2001); MORALES V COUNTY OF
NASSAU, 94 NYS2d 2 J 8 (1999). The Court of Appeals has stated that
CPLR 1602 does not establish an exemption from apportionment of
damages for domestic violence. It further says that courts cannot by
judicial fiat create such an exemption, the legislature must do so.

This bill accepts the Court of Appeals invitation to give domestic
violence victims the civil remedies to make them whole. It gives
victims the same access to any liable defendant for full compensation
for serious psychological and social harm that the law now allows for
medical expenses and lost wages. To deny victims of domestic violence
recovery for all of the injuries that they suffer lessens the
deterrent effect of domestic violence statutes. In light of the strong
public policy against domestic violence expressed by the state
legislature, this result is untenable.  Public institutions charged
with enforcement of orders of protection must be held accountable.

It has been a long struggle to establish domestic violence as a crime
and compel police intervention. New York changed the common law roles
about joint and several liability in 1986 before New York passed the
legislation and funded the programs and services to prevent domestic
violence and protect family members against abuse. The legislature,
however, did retain joint and several liability as a matter of public
policy for worker's compensation, automobile accidents, intentional
torts and environmental hazards. Victims of domestic violence deserve
the same consideration. Since 1986, much of the legislation about
domestic violence included initiatives to support and promote
enforcement of orders of protection to secure a safe environment for
families plagued by violence. This bill incorporates these recent
policies into the rules and procedures of civil law in personal injury
cases.

This bill deals only with damages after liability has been established
and accepted by a court or jury. It does not change tort laws; in
negligence, a plaintiff must still prove that a defendant owed her
duty of care which was breached and which breach caused her injuries.
This bill does not change the proof required to establish liability
for personal injuries nor does it shift the burden of such proof.
Furthermore, this bill does not remove immunity specifically granted
to the police or public o11icers by statute. And, it does not assign
liability to municipalities for performance of governmental functions.
The bill only allows a plaintiff who has proven her case and won
damages for her injuries to collect those damages from any and all
defendants.

 PRIOR LEGISLATIVE HISTORY :
A.10497 of 2002: Third Reading A.33 of 2003-04: Third Reading A.1271
of 2005-2006: Third Reading A.2078 of 2007-08: Third Reading

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This act shall take effect immediately.