BILL NUMBER: S707

SPONSOR: GALLIVAN
 
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 train-
ing 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 evapo-
rate from the market. This insurance coverage crisis is especially
difficult for smaller contractors Many insurance carriers who have with-
drawn 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 negli-
gence standard is only applied in limited circumstances such as commis-
sion 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 clar-
ify 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 stat-
ute that remains the only such statute in place among the other 49
states.

 
LEGISLATIVE HISTORY:

2017-18: S.2795/A.2148 Referred to Judiciary
2015-16: S.543/A.3209 Referred to Judiciary
2013-14: S.111/A.3104 Referred to Judiciary
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.