senate Bill S111

2013-2014 Legislative Session

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

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to judiciary
Jan 09, 2013 referred to judiciary

Co-Sponsors

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S111 - Bill Details

See Assembly Version of this Bill:
A3104
Current Committee:
Senate Judiciary
Law Section:
Civil Practice Law and Rules
Laws Affected:
Add ยง1414, CPLR
Versions Introduced in Previous Legislative Sessions:
2011-2012: S6816, A2835
2009-2010: S4037, A1895

S111 - Bill Texts

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

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BILL NUMBER:S111

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.

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

                                   111

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (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 IN

 EXPLANATION--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.

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