BILL NUMBER:S1264

TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to
limited liability of persons jointly liable

PURPOSE:

To provide that limited liability for persons held jointly liable
shall not apply to parties held liable for failing to provide security
as required by law, rule, or regulation

SUMMARY OF PROVISIONS:

Section one amends section 1602 of the civil practice law and rules by
adding a new subdivision (14) to provide that limitations on liability
will not apply to any person who owns, manages, and/or controls
property or provides security for said property who fails to provide
security as required by law, rule, or regulation.

Section two provides the effective date and that the law shall apply
to causes of action commenced or pending on or after such date.

JUSTIFICATION:

              

Where a tenant is raped by an intruder who gained access to the
tenant's building through a defect in the building's security, New
York is among a small number of states that asks a jury to apportion
liability between the rapist and the negligent landlord who failed to
keep the building secure. This leads to an unintended and bizarre
result when the victim attempts to recover damages from the negligent
landlord for the personal injury suffered at the hands of the rapist.

Under current law, if the negligent landlord is found to be 50% or
less liable for the injury, the landlord's liability is limited to his
"equitable share" based on the "relative culpability" of each person
contributing to the total liability. The only time this limitation, on
liability of the landlord is not imposed is when the other person
contributing to the liability, i.e. the rapist, cannot be found.

Accordingly, in the case of the raped tenant, a jury will likely find
the rapist to be more than 50%, if not 100%, liable for the victim's
injury, freeing the landlord from liability, even though the landlord
failed to maintain adequate security at the time of the assault.

There is another curious consequence that results from the application
of this limitation on liability. Current law provides that the
limitation on liability is not applied where the other person
responsible for the victim's injury cannot be found. So in the case of
the raped tenant, if the rapist cannot be found, the limitation on
liability of the landlord will not be imposed and the victim may be
able to recover fully for damages against the landlord for his failing
to provide reasonable security. If, on the other hand, the rapist is
found, the victim will likely recover little, if any, damages from the
landlord since the limitation of liability will be applied based on
the landlord's "relative culpability." The landlord's relative


culpability will likely be deemed to be small as compared to the
rapist's culpability, and almost all of the liability imposed, on the
rapist. One may surmise that the odds of recovering damages from the
rapist are slim.

Current law, then, forces the victim to choose between cooperating
with law enforcement to find her attacker and bring him to justice and
not seeking to identify her assailant so that she can recover damages
100% from the landlord in her personal injury action. Prior to 2002,
New York courts generally held that the law requiring apportionment of
liability did not apply to personal injury actions involving a
negligent actor (i.e., a landlord) and an intentional wrongdoer (i.e.,
a criminal who commits assault). Yet the Court of Appeals in 2002
required allocation of liability, noting that the legislature would
need to modify the law to clarify its intent regarding apportionment
in these types of cases.

This bill will make clear that allocation of liability will not apply
to person who owns, manages, and/or controls property or provides
security for said property for failing to provide security as required
by law, rule, or regulation.

LEGISLATIVE HISTORY:

2013-2014 - S.81
2011-12: S.127
2010: S.7673/A.8644-A

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect immediately.