BILL NUMBER: S1868

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to exempt-
ing 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 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 OF BILL:

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 for domestic
violence. It permits a domestic violence 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.

New York changed the common law rules about joint and several liability
in 1986 before New York passed the .1994 Family Protection and Domestic
Violence Intervention Act (1994 Domestic Violence Act) and funded the
programs and services to prevent domestic violence and protect family
members against abuse. Under current law, multiple tortfeasors are typi-
cally liable for damages only in proportion to their liability for none-
conomic losses, i.e. pain and suffering.  However, there are significant
exceptions to this rule currently in law, such as for liability deriving
from automobile accidents, intentional torts and environmental hazards
to name but a few. The legislature has provided, in these other types of
cases, the same exception which this bill now seeks to add for victims
of domestic violence.

This bill gives domestic violence victims 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 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 and criminal procedure laws all have been
amended to compel public intervention to prevent domestic violence,
protect against violence between family members and to hold accountable
those who abuse their families. This is a priority for New York State.
It is also important that public institutions charged with enforcement
of orders of protection be held accountable. 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.

In fact, 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 a "non-delegable" responsibility to enforce court orders of
protection. It has been a long struggle to establish domestic violence
as a crime and to compel police intervention. 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 the spirit of
these policies into the civil procedure law and rules applicable in
personal injury cases.  This bill permits a domestic violence victim to
recover damages from all defendants found liable by a court or jury
after a trial on the merits of the action.

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 negli-
gence, a plaintiff must still prove that a defendant owed her duty of
care that was breached, where the 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.  Further-
more, this bill does not remove immunity specifically granted to the
police or public officers by statute. It also 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.

 
LEGISLATIVE HISTORY:

2017-18: A.1390 - Referred to Codes

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

Unknown.

 
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it becomes law.