Bill Text: NY A08921 | 2009-2010 | General Assembly | Introduced
Bill Title: Provides for a limitation of non-economic damages in certain person injury cases; relates to the exemption of tax districts from obligation or liability with respect to pre-existing environmental contamination or pollution; relates to liability of public entities; relates to civil actions against professionals; relates to the duty to keep premises safe for certain uses and enacts the equine activity safety code act; relates to specific defenses for product liability actions; relates to the disclosure of employment related information.
Spectrum: Partisan Bill (Republican 20-0)
Status: (Introduced - Dead) 2010-03-16 - held for consideration in codes [A08921 Detail]
Download: New_York-2009-A08921-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
8921
2009-2010 Regular Sessions
I N A S S E M B L Y
June 16, 2009
___________
Introduced by M. of A. BALL, BURLING, OAKS, CALHOUN -- Multi-Sponsored
by -- M. of A. BACALLES, BARCLAY, BUTLER, CONTE, CROUCH, FITZPATRICK,
HAYES, KOLB, McDONOUGH, MILLER, RABBITT, RAIA, REILICH, SAYWARD, SCOZ-
ZAFAVA -- read once and referred to the Committee on Codes
AN ACT to amend the civil practice law and rules, the labor law, the
vehicle and traffic law, and the court of claims act, in relation to
non-economic damages for personal injury; to amend the real property
tax law, in relation to the exemption of tax districts from obligation
or liability with respect to pre-existing environmental contamination
or pollution; to amend the general municipal law, in relation to
liability of public entities; to amend the civil practice law and
rules, in relation to civil actions against professionals; to amend
the general obligations law, in relation to the duty to keep premises
safe for certain uses and enacting the "equine activity safety code
act"; to amend the civil practice law and rules, in relation to
specific defenses for product liability actions; to amend the labor
law, in relation to the disclosure of employment related information;
and to repeal article 16, section 214-d, subdivision (h) of rule 3211
and subdivision (i) of rule 3212 of the civil practice law and rules
and section 241-a of the labor law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The civil practice law and rules is amended by adding a new
2 article 50-C to read as follows:
3 ARTICLE 50-C
4 LIMITATION ON NONECONOMIC DAMAGES
5 5051. DEFINITIONS.
6 5052. DAMAGE AWARDS.
7 S 5051. DEFINITIONS. AS USED IN THIS ARTICLE:
8 1. "NONECONOMIC DAMAGES" MEANS SUBJECTIVE, NONPECUNIARY DAMAGES ARIS-
9 ING FROM THE PAIN, SUFFERING, INCONVENIENCE, PHYSICAL IMPAIRMENT OR
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14261-01-9
A. 8921 2
1 DISFIGUREMENT, MENTAL ANGUISH, EMOTIONAL DISTRESS, LOSS OF SOCIETY AND
2 COMPANIONSHIP, LOSS OF CONSORTIUM, INJURY TO REPUTATION, HUMILIATION AND
3 OTHER NONPECUNIARY DAMAGES.
4 2. "ACTUAL ECONOMIC DAMAGES" MEANS OBJECTIVELY VERIFIABLE PECUNIARY
5 DAMAGES ARISING FROM MEDICAL EXPENSES AND MEDICAL CARE, LOSS OF EARNINGS
6 AND EARNING CAPACITY, BURIAL COSTS, LOSS OF USE OF PROPERTY, COSTS OF
7 REPAIR OR REPLACEMENT OF PROPERTY, COSTS OF OBTAINING SUBSTITUTE DOMES-
8 TIC SERVICES, LOSS OF EMPLOYMENT, LOSS OF BUSINESS OR EMPLOYMENT OPPOR-
9 TUNITIES, REHABILITATION SERVICES, CUSTODIAL CARE AND OTHER PECUNIARY
10 DAMAGES.
11 3. "PERSONAL INJURY ACTION" MEANS ANY ACTION, INCLUDING BUT IN NO
12 MANNER LIMITED TO MEDICAL, DENTAL AND PODIATRIC MALPRACTICE ACTIONS,
13 WHETHER IN TORT, CONTRACT, OR OTHERWISE, IN WHICH THE PLAINTIFF SEEKS
14 DAMAGES FOR INJURY TO THE PERSON OR WRONGFUL DEATH.
15 4. "COMPENSATION" MEANS MONETARY AWARDS.
16 S 5052. DAMAGE AWARDS. IN ANY PERSONAL INJURY ACTION, THE PREVAILING
17 PLAINTIFF MAY BE AWARDED:
18 1. COMPENSATION FOR ACTUAL ECONOMIC DAMAGES SUFFERED BY THE INJURED
19 PLAINTIFF; AND
20 2. COMPENSATION FOR NONECONOMIC DAMAGES SUFFERED BY THE INJURED PLAIN-
21 TIFF, NOT TO EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS, PROVIDED, HOWEV-
22 ER, THAT THIS PROVISION SHALL NOT APPLY WHERE A VERDICT OR DECISION OF A
23 COURT INVOLVES A FINDING OF WILLFUL, WANTON OR GROSS NEGLIGENCE AGAINST
24 THE RESPONSIBLE PARTY OR PARTIES.
25 S 2. Section 240 of the labor law, the section heading and subdivision
26 2 as amended by chapter 683 of the laws of 1947 and subdivision 1 as
27 amended by chapter 241 of the laws of 1981, is amended to read as
28 follows:
29 S 240. Scaffolding and other devices for use of employees. 1. All
30 contractors and owners and their agents, except owners of one and two-
31 family dwellings who contract for but do not direct or control the work,
32 in the erection, demolition, repairing, altering, painting, cleaning or
33 pointing of a building or structure shall furnish or erect, or cause to
34 be furnished or erected DEVICES OR EQUIPMENT for the performance of such
35 labor, SUCH AS scaffolding, hoists, stays, ladders, slings, hangers,
36 blocks, pulleys, braces, irons, AND ropes, [and other devices which]
37 WHERE SUCH DEVICES OR EQUIPMENT ARE NECESSARY TO GIVE REASONABLE AND
38 ADEQUATE PROTECTION AND SAFETY TO A PERSON SO EMPLOYED. WHERE SUCH
39 DEVICES OR EQUIPMENT ARE FURNISHED OR ERECTED THE DEVICES OR EQUIPMENT
40 shall be so constructed, placed and operated as to [give proper] PROVIDE
41 REASONABLE AND ADEQUATE protection AND SAFETY to a person so employed.
42 No liability pursuant to this subdivision for the failure to provide
43 protection to a person so employed shall be imposed on professional
44 engineers as provided for in article one hundred forty-five of the
45 education law, architects as provided for in article one hundred forty-
46 seven of such law or landscape architects as provided for in article one
47 hundred forty-eight of such law who do not direct or control the work
48 for activities other than planning and design. This exception shall not
49 diminish or extinguish any liability of professional engineers or archi-
50 tects or landscape architects arising under the common law or any other
51 provision of law.
52 2. [Scaffolding or staging more than twenty feet from the ground or
53 floor, swung or suspended from an overhead support or erected with
54 stationary supports, except scaffolding wholly within the interior of a
55 building and covering the entire floor space of any room therein, shall
56 have a safety rail of suitable material properly attached, bolted,
A. 8921 3
1 braced or otherwise secured, rising at least thirty-four inches above
2 the floor or main portions of such scaffolding or staging and extending
3 along the entire length of the outside and the ends thereof, with only
4 such openings as may be necessary for the delivery of materials. Such
5 scaffolding or staging shall be so fastened as to prevent it from sway-
6 ing from the building or structure.
7 3. All scaffolding shall be so constructed as to bear four times the
8 maximum weight required to be dependent therefrom or placed thereon when
9 in use.] COMPLIANCE WITH APPLICABLE PROVISIONS OF THE FEDERAL OCCUPA-
10 TIONAL SAFETY AND HEALTH ACT AND PART TWENTY-THREE OF TITLE TWELVE OF
11 THE NEW YORK CODES, RULES AND REGULATIONS, AS AMENDED, SHALL BE PRIMA
12 FACIE PROOF OF COMPLIANCE WITH SUBDIVISION ONE OF THIS SECTION.
13 3. NOTHING IN THIS SECTION SHALL BE DEEMED TO RELIEVE A PERSON INJURED
14 IN THE ERECTION, DEMOLITION, REPAIRING, ALTERING, PAINTING, CLEANING OR
15 POINTING OF A BUILDING OR STRUCTURE FROM THE CONSEQUENCES OF HIS CULPA-
16 BLE CONDUCT IN ACCORDANCE WITH SECTION FOURTEEN HUNDRED ELEVEN OF THE
17 CIVIL PRACTICE LAW AND RULES.
18 S 3. Section 241 of the labor law, as added by chapter 1108 of the
19 laws of 1969, the opening paragraph as amended by chapter 670 of the
20 laws of 1980, subdivisions 6, 7 and 8 as amended and subdivision 10 as
21 added by chapter 520 of the laws of 1989 and subdivision 9 as added by
22 chapter 241 of the laws of 1981, is amended to read as follows:
23 S 241. Construction, excavation and demolition work. 1. All contrac-
24 tors and owners and their agents, except owners of one and two-family
25 dwellings who contract for but do not direct or control the work, when
26 constructing or demolishing buildings or doing any excavating in
27 connection therewith, shall [comply with the following requirements:
28 1. If the floors are to be arched between the beams thereof, or if the
29 floors or filling in between the floors are of fireproof material, the
30 flooring or filling in shall be completed as the building progresses.
31 2. If the floors are not to be filled in between the beams with brick
32 or other fireproof material, the underflooring shall be laid on each
33 story as the building progresses.
34 3. If double floors are not to be used, the floor two stories imme-
35 diately below the story where the work is being performed shall be kept
36 planked over.
37 4. If the floor beams are of iron or steel, the entire tier of iron or
38 steel beams on which the structural iron or steel work is being erected
39 shall be thoroughly planked over, except spaces reasonably required for
40 proper construction of the iron or steel work, for raising or lowering
41 of materials or for stairways and elevator shafts designated by the
42 plans and specifications.
43 5. If elevators, elevating machines or hod-hoisting apparatus are used
44 in the course of construction, for the purpose of lifting materials, the
45 shafts or openings in each floor and at each landing level shall be
46 inclosed or fenced in on all sides by a barrier of suitable height,
47 except on two sides which may be used for taking off and putting on
48 materials, and those sides shall be guarded by an adjustable barrier not
49 less than three nor more than four feet from the floor and not less than
50 two feet from the edges of such shafts or openings.
51 6. All areas in which construction, excavation or demolition work is
52 being performed shall be so constructed, shored, equipped, guarded,
53 arranged, operated and conducted] CONSTRUCT, SHORE, EQUIP, GUARD,
54 ARRANGE, OPERATE AND CONDUCT SUCH WORK SO as to provide reasonable and
55 adequate protection and safety to the persons employed therein or
56 lawfully frequenting such places. The commissioner may make rules to
A. 8921 4
1 carry into effect the provisions of this subdivision, and the owners and
2 contractors and their agents for such work, except owners of one and
3 two-family dwellings who contract for but do not direct or control the
4 work, shall comply therewith.
5 [7. The commissioner may make rules to provide for the protection of
6 workers in connection with the excavation work for the construction of
7 buildings, the work of constructing or demolishing buildings and struc-
8 tures, and the guarding of dangerous machinery used in connection there-
9 with, and the owners and contractors and their agents for such work,
10 except owners of one and two-family dwellings who contract for but do
11 not direct or control the work, shall comply therewith.
12 8.] 2. COMPLIANCE WITH APPLICABLE PROVISIONS OF THE FEDERAL OCCUPA-
13 TIONAL SAFETY AND HEALTH ACT AND PART TWENTY-THREE OF TITLE TWELVE OF
14 THE NEW YORK CODES, RULES AND REGULATIONS, AS AMENDED, SHALL BE PRIMA
15 FACIE PROOF OF COMPLIANCE WITH SUBDIVISION ONE OF THIS SECTION.
16 3. NOTHING IN THIS SECTION SHALL BE DEEMED TO RELIEVE A PERSON INJURED
17 IN THE CONSTRUCTION, DEMOLITION OR EXCAVATION OF A BUILDING OR STRUCTURE
18 FROM THE CONSEQUENCES OF HIS CULPABLE CONDUCT IN ACCORDANCE WITH SECTION
19 FOURTEEN HUNDRED ELEVEN OF THE CIVIL PRACTICE LAW AND RULES.
20 4. The commissioner, as deemed necessary, shall promulgate rules
21 designed for the purpose of providing for the reasonable and adequate
22 protection and safety of persons passing by all areas, buildings or
23 structures in which construction, excavation or demolition work is being
24 performed, and the owners and contractors and their agents for such
25 work, except owners of one and two-family dwellings who contract for but
26 do not direct or control the work, shall comply therewith. The
27 provisions of this subdivision shall not apply to cities having a popu-
28 lation of one million or more.
29 [9.] 5. No liability for the non-compliance with any of the provisions
30 of this section shall be imposed on professional engineers as provided
31 for in article one hundred forty-five of the education law, architects
32 as provided for in article one hundred forty-seven of such law or land-
33 scape architects as provided for in article one hundred forty-eight of
34 such law who do not direct or control the work for activities other than
35 planning and design. This exception shall not diminish or extinguish any
36 liability of professional engineers, architects or landscape architects
37 arising under the common law or any other provision of law.
38 [10.] 6. Prior to advertising for bids or contracting for or commenc-
39 ing work on any demolition work on buildings covered under this section
40 except agricultural buildings as defined in regulations promulgated by
41 the commissioner and except buildings the construction of which was
42 begun on or after January first, nineteen hundred seventy-four, all
43 owners and their agents, except owners of one and two-family dwellings
44 who contract for but do not direct or control the work, shall conduct or
45 cause to be conducted a survey to determine whether or not the building
46 to be demolished contains asbestos or asbestos material as defined in
47 section nine hundred one of this chapter. Such surveys shall be
48 conducted in conformance with rules and regulations promulgated by the
49 commissioner. Information derived from such survey shall be immediately
50 transmitted to the commissioner and to the local governmental entity
51 charged with issuing a permit for such demolition under applicable state
52 or local laws or, if no such permit is required, to the town or city
53 clerk. If such survey finds that a building to be demolished contains
54 asbestos or asbestos material as defined by section nine hundred one of
55 [the] THIS chapter, no bids shall be advertised nor contracts awarded
56 nor demolition work commenced by any owner or agent prior to completion
A. 8921 5
1 of an asbestos remediation contract performed by a licensed asbestos
2 contractor as defined by section nine hundred one of this chapter.
3 S 4. Section 241-a of the labor law is REPEALED.
4 S 5. The opening paragraph of subdivision 3 of section 30 of the labor
5 law, as added by chapter 162 of the laws of 1993, is amended to read as
6 follows:
7 Except for variations concerning provisions, rules, codes, orders or
8 any other matter affecting asbestos projects or safety and health stand-
9 ards for public employees, including but not limited to projects covered
10 by article thirty and section twenty-seven-a and subdivision [ten] SIX
11 of section two hundred forty-one of this chapter;
12 S 6. Subdivision 3 of section 388 of the vehicle and traffic law, as
13 amended by chapter 552 of the laws of 1962, is amended to read as
14 follows:
15 3. As used in this section, "owner" shall be as defined in section one
16 hundred twenty-eight of this chapter and their liability under this
17 section shall be joint and several. If a vehicle be sold under a
18 contract of sale which reserves a security interest in the vehicle in
19 favor of the vendor, such vendor or his assignee shall not, after deliv-
20 ery of such vehicle, be deemed an owner within the provisions of this
21 section, but the vendee, or his assignee, receiving possession thereof,
22 shall be deemed such owner notwithstanding the terms of such contract,
23 until the vendor or his assignee shall retake possession of such vehi-
24 cle. A secured party in whose favor there is a security interest in any
25 vehicle out of his possession, shall not be deemed an owner within the
26 provisions of this section. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
27 SUBDIVISION, IF A VEHICLE IS A LEASED VEHICLE, THE TERM "OWNER" SHALL
28 MEAN THE PERSON TO WHOM THE VEHICLE HAS BEEN LEASED, NOT THE PERSON TO
29 WHOM THE CERTIFICATE OF TITLE FOR THE VEHICLE HAS BEEN ISSUED OR
30 ASSIGNED OR TO WHOM THE MANUFACTURER'S OR IMPORTER'S CERTIFICATE OF
31 ORIGIN FOR THE VEHICLE HAS BEEN DELIVERED OR ASSIGNED. FOR PURPOSES OF
32 THIS SECTION, "LEASED" MEANS THE TRANSFER OF THE POSSESSION OR THE RIGHT
33 TO POSSESSION OF A VEHICLE TO A LESSEE FOR A VALUABLE CONSIDERATION FOR
34 A CONTINUOUS PERIOD OF TWELVE MONTHS OR MORE, PURSUANT TO ONE OR MORE
35 WRITTEN AGREEMENTS.
36 S 7. Subdivisions 2, 3 and 4 of section 9 of the court of claims act,
37 subdivision 2 as amended by chapter 40 of the laws of 1977, are amended
38 to read as follows:
39 2. To hear and determine a claim of any person, corporation or munici-
40 pality against the state, A COUNTY, CITY, TOWN, VILLAGE, SCHOOL
41 DISTRICT, OR A SPECIAL DISTRICT, AS SUCH TERM IS DEFINED IN SECTION ONE
42 HUNDRED TWO OF THE REAL PROPERTY TAX LAW, for the appropriation of any
43 real or personal property or any interest therein, for the breach of
44 contract, express or implied, or for the torts of its officers or
45 employees while acting as such officers or employees, providing the
46 claimant complies with the limitations of this article. For the
47 purposes of this act only, a real property tax lien shall be deemed to
48 be an interest in real property.
49 3. To hear and determine any claim in favor of the state, A COUNTY,
50 CITY, TOWN, VILLAGE, SCHOOL DISTRICT, OR A SPECIAL DISTRICT, AS SUCH
51 TERM IS DEFINED IN SECTION ONE HUNDRED TWO OF THE REAL PROPERTY TAX LAW,
52 against the claimant, or against his assignor at the time of the assign-
53 ment.
54 4. To render judgment in favor of the claimant or the state, A COUNTY,
55 CITY, TOWN, VILLAGE, SCHOOL DISTRICT, OR A SPECIAL DISTRICT, AS SUCH
56 TERM IS DEFINED IN SECTION ONE HUNDRED TWO OF THE REAL PROPERTY TAX LAW,
A. 8921 6
1 for such sum as should be paid by or to the state, A COUNTY, CITY, TOWN,
2 VILLAGE, SCHOOL DISTRICT, OR A SPECIAL DISTRICT, AS SUCH TERM IS DEFINED
3 IN SECTION ONE HUNDRED TWO OF THE REAL PROPERTY TAX LAW.
4 S 8. The court of claims act is amended by adding a new section 9-a to
5 read as follows:
6 S 9-A. CONSTRUCTION OF "STATE". FOR PURPOSES OF THIS ACT, THE TERM
7 "STATE" SHALL BE DEEMED TO INCLUDE A COUNTY, CITY, TOWN, VILLAGE, SCHOOL
8 DISTRICT, OR A SPECIAL DISTRICT, AS THAT TERM IS DEFINED IN SECTION ONE
9 HUNDRED TWO OF THE REAL PROPERTY TAX LAW, WHENEVER SUCH A CONSTRUCTION
10 IS NECESSARY TO EFFECTUATE THE PROVISIONS OF THIS ACT WITH RESPECT TO
11 THE JURISDICTION CONFERRED BY SECTION NINE OF THIS ARTICLE PERTAINING TO
12 SUCH ENTITIES; PROVIDED THAT SUCH A CONSTRUCTION SHALL NOT BE GIVEN WHEN
13 IT WOULD CONFLICT WITH THE PROVISIONS OF THE GENERAL MUNICIPAL LAW.
14 S 9. Article 16 of the civil practice law and rules is REPEALED and a
15 new article 16 is added to read as follows:
16 ARTICLE 16
17 LIMITED LIABILITY OF PERSONS JOINTLY LIABLE
18 1600. DEFINITIONS.
19 1601. LIMITED LIABILITY OF PERSONS JOINTLY LIABLE.
20 1602. APPLICATION.
21 1603. BURDEN OF PROOF.
22 S 1600. DEFINITIONS. AS USED IN THIS ARTICLE, THE TERM "DAMAGES" SHALL
23 INCLUDE, BUT IN NO MANNER BE LIMITED TO, ALL ECONOMIC AND NON-ECONOMIC
24 LOSS AWARDED IN AN ACTION AS PECUNIARY COMPENSATION OR SATISFACTION FOR
25 AN INJURY CAUSED OR LOSS SUSTAINED AS A RESULT OF A BREACH OF A CONTRAC-
26 TUAL OBLIGATION, A TORTIOUS ACT OF COMMISSION OR OMISSION OF ANY OTHER
27 SUCH INCIDENT.
28 S 1601. LIMITED LIABILITY OF PERSONS JOINTLY LIABLE. 1. NOTWITHSTAND-
29 ING ANY OTHER PROVISION OF LAW, WHEN A VERDICT OR DECISION IN AN ACTION
30 OR CLAIM FOR ECONOMIC OR NON-ECONOMIC DAMAGES IS DETERMINED IN FAVOR OF
31 A CLAIMANT IN AN ACTION INVOLVING TWO OR MORE WRONGDOERS JOINTLY LIABLE
32 OR IN A CLAIM AGAINST THE STATE, THE LIABILITY OF EACH SUCH WRONGDOER TO
33 THE CLAIMANT FOR LOSS SHALL NOT EXCEED THE WRONGDOER'S EQUITABLE SHARE
34 DETERMINED IN ACCORDANCE WITH THE RELATIVE CULPABILITY OF EACH PERSON
35 CAUSING OR CONTRIBUTING TO THE TOTAL LIABILITY, WHETHER OR NOT SUCH
36 PERSON WAS OR COULD HAVE BEEN A PARTY TO THE ACTION.
37 2. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO AFFECT OR IMPAIR ANY
38 RIGHT OF A WRONGDOER PURSUANT TO THE PROVISIONS OF SECTION 15-108 OF THE
39 GENERAL OBLIGATIONS LAW.
40 S 1602. APPLICATION. THE LIMITATIONS SET FORTH IN THIS ARTICLE SHALL:
41 1. APPLY TO ANY CLAIM FOR CONTRIBUTION OR INDEMNIFICATION BUT SHALL
42 NOT INCLUDE: (A) A CLAIM FOR INDEMNIFICATION IF, PRIOR TO THE ACCIDENT
43 OR OCCURRENCE ON WHICH THE CLAIM IS BASED, THE CLAIMANT AND THE WRONG-
44 DOER HAD ENTERED INTO A WRITTEN CONTRACT IN WHICH THE WRONGDOER HAD
45 EXPRESSLY AGREED TO INDEMNIFY THE CLAIMANT FOR THE TYPE OF LOSS
46 SUFFERED; OR (B) A CLAIM FOR INDEMNIFICATION BY A PUBLIC EMPLOYEE,
47 INCLUDING INDEMNIFICATION PURSUANT TO SECTION FIFTY-K OF THE GENERAL
48 MUNICIPAL LAW OR SECTION SEVENTEEN OR EIGHTEEN OF THE PUBLIC OFFICERS
49 LAW.
50 2. NOT BE CONSTRUED TO IMPAIR, ALTER, LIMIT, MODIFY, ENLARGE, ABROGATE
51 OR RESTRICT (A) THE LIMITATIONS SET FORTH IN SECTION TWENTY-A OF THE
52 COURT OF CLAIMS ACT; (B) ANY IMMUNITY OR RIGHT OF INDEMNIFICATION AVAIL-
53 ABLE TO OR CONFERRED UPON ANY DEFENDANT FOR ANY NEGLIGENT OR WRONGFUL
54 ACT OR OMISSION; (C) ANY RIGHT ON THE PART OF ANY DEFENDANT TO PLEAD AND
A. 8921 7
1 PROVE AN AFFIRMATIVE DEFENSE AS TO CULPABLE CONDUCT ATTRIBUTABLE TO A
2 CLAIMANT OR DECEDENT WHICH IS CLAIMED BY SUCH DEFENDANT IN DIMINUTION OF
3 DAMAGES IN ANY ACTION; AND (D) ANY LIABILITY ARISING BY REASON OF A
4 NON-DELEGABLE DUTY OR BY REASON OF THE DOCTRINE OF RESPONDENT SUPERIOR.
5 3. NOT BE APPLIED TO CLAIMS UNDER THE WORKERS' COMPENSATION LAW OR TO
6 A CLAIM AGAINST A DEFENDANT WHERE THE CLAIMANT HAS SUSTAINED A "GRAVE
7 INJURY" AS DEFINED IN SECTION ELEVEN OF THE WORKERS' COMPENSATION LAW TO
8 THE EXTENT OF THE EQUITABLE SHARE OF ANY PERSON AGAINST WHOM THE CLAIM-
9 ANT IS BARRED FROM ASSERTING A CAUSE OF ACTION BECAUSE OF THE APPLICA-
10 BILITY OF THE WORKERS' COMPENSATION LAW; PROVIDED, HOWEVER, THAT NOTHING
11 IN THIS SECTION SHALL BE CONSTRUED TO CREATE, IMPAIR, ALTER, LIMIT,
12 MODIFY, ENLARGE, ABROGATE OR RESTRICT ANY THEORY OF LIABILITY UPON WHICH
13 ANY PERSON MAY BE HELD LIABLE.
14 4. IN CONJUNCTION WITH THE OTHER PROVISIONS OF THIS ARTICLE NOT BE
15 CONSTRUED TO CREATE OR ENLARGE ACTIONS FOR CONTRIBUTIONS OR INDEMNITY
16 BARRED BECAUSE OF THE APPLICATION OF THE WORKERS' COMPENSATION LAW OF
17 THIS STATE, ANY OTHER STATE OR THE FEDERAL GOVERNMENT, OR SECTION 18-201
18 OF THE GENERAL OBLIGATIONS LAW.
19 S 1603. BURDEN OF PROOF. IN ANY ACTION OR CLAIM FOR DAMAGES, A PARTY
20 ASSERTING THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS ARTICLE DO
21 NOT APPLY SHALL ALLEGE, AND MUST PROVE BY A PREPONDERANCE OF THE
22 EVIDENCE, THAT ONE OR MORE OF THE EXEMPTIONS SET FORTH IN EITHER SUBDI-
23 VISION TWO OF SECTION SIXTEEN HUNDRED ONE, OR SECTION SIXTEEN HUNDRED
24 TWO OF THIS ARTICLE, SHALL APPLY.
25 S 10. The real property tax law is amended by adding a new section
26 1181 to read as follows:
27 S 1181. EXEMPTION OF TAX DISTRICT FROM OBLIGATION OR LIABILITY WITH
28 RESPECT TO PRE-EXISTING ENVIRONMENTAL CONTAMINATION OR POLLUTION. A TAX
29 DISTRICT SHALL NOT INCUR ANY OBLIGATION OR LIABILITY FOR (1) THE ASSESS-
30 MENT, REGISTRATION, CLEANUP, REMOVAL, ABATEMENT, DISPOSAL OR TREATMENT
31 OF ANY HAZARDOUS SUBSTANCE OR WASTE, PETROLEUM DISCHARGE, BURIED TANK OR
32 CONTAINER, TOXIC SUBSTANCE OR WASTE, ASBESTOS, LEAD PAINT, PESTICIDE,
33 RADIOACTIVE SUBSTANCE, OR OTHER ENVIRONMENTAL CONTAMINANT OR POLLUTANT
34 WHICH WAS PRESENT UPON, IN THE AIR ABOVE, OR IN THE GROUND BELOW A
35 PARCEL OF REAL PROPERTY OR (2) ANY INJURY OR DAMAGE TO PERSON OR PROPER-
36 TY RESULTING THEREFROM WHICH OCCURRED PRIOR TO THE TIME TITLE TO SUCH
37 PARCEL WAS ACQUIRED BY SUCH TAX DISTRICT PURSUANT TO THE PROVISIONS OF
38 THIS ARTICLE, UNLESS THE PRESENCE OF SUCH ENVIRONMENTAL CONTAMINANT OR
39 POLLUTANT OR SUCH PRIOR INJURY OR DAMAGE RESULTING THEREFROM WAS PHYS-
40 ICALLY CAUSED OR CONTRIBUTED TO BY SUCH TAX DISTRICT. NOR SHALL A TAX
41 DISTRICT HAVING ACQUIRED TITLE TO SUCH ENVIRONMENTALLY CONTAMINATED OR
42 POLLUTED PARCEL OF REAL PROPERTY PURSUANT TO THE PROVISIONS OF THIS
43 ARTICLE INCUR ANY SUCH OBLIGATION OR LIABILITY AS A RESULT OF THEREAFTER
44 (A) TAKING ANY ACTION TO SECURE, PRESERVE, STABILIZE, MAINTAIN, OR
45 COLLECT FROM ANY HOLDOVER OCCUPANT THEREOF THE FAIR VALUE OF THE TEMPO-
46 RARY USE AND OCCUPANCY OF SUCH PARCEL OR (B) TRANSFERRING TITLE TO SUCH
47 PARCEL TO ANY OTHER PERSON OR ENTITY, UNLESS SUCH ACTION OR TRANSFER OF
48 TITLE PHYSICALLY CONTRIBUTES TO SUCH PRE-EXISTING ENVIRONMENTAL CONTAM-
49 INATION OR POLLUTION OR PRIOR INJURY OR DAMAGE TO PERSON OR PROPERTY.
50 S 11. The general municipal law is amended by adding a new article 4-A
51 to read as follows:
52 ARTICLE 4-A
53 LIABILITY OF PUBLIC ENTITIES
54 SECTION 60. DEFINITIONS.
55 61. APPLICATION.
A. 8921 8
1 62. LIABILITY OF PUBLIC ENTITIES FOR INJURIES SUSTAINED ON OR IN
2 PUBLIC RECREATIONAL FACILITIES.
3 S 60. DEFINITIONS. AS USED IN THIS ARTICLE:
4 1. "PUBLIC ENTITY" MEANS (A) A COUNTY, CITY, TOWN, VILLAGE OR ANY
5 OTHER POLITICAL SUBDIVISION OR CIVIL DIVISION OF THE STATE; (B) A SCHOOL
6 DISTRICT, BOARD OF COOPERATIVE EDUCATIONAL SERVICES OR ANY OTHER GOVERN-
7 MENTAL ENTITY OR COMBINATION OR ASSOCIATION OF GOVERNMENTAL ENTITIES
8 OPERATING A PUBLIC SCHOOL, COLLEGE OR COMMUNITY COLLEGE OR UNIVERSITY,
9 EXCEPT A STATE UNIVERSITY; (C) A PUBLIC IMPROVEMENT OR SPECIAL DISTRICT
10 OR DISTRICT CORPORATION; (D) A PUBLIC BENEFIT CORPORATION; (E) A MUNICI-
11 PAL HOUSING AUTHORITY; OR (F) ANY OTHER PUBLIC CORPORATION OR POLITICAL
12 SUBDIVISION OF THE STATE.
13 2. "OPERATOR" MEANS A PERSON OR PERSONS UNDER CONTRACT WITH A PUBLIC
14 ENTITY TO PROVIDE FOR THE OPERATION, MAINTENANCE OR BOTH OF A PUBLIC
15 RECREATIONAL FACILITY.
16 3. "PUBLIC RECREATIONAL FACILITY" MEANS A FACILITY OWNED BY A PUBLIC
17 ENTITY FOR THE USE OF THE GENERAL PUBLIC AS SPECTATORS OR PARTICIPANTS
18 IN RECREATION ACTIVITIES INCLUDING, BUT NOT LIMITED TO, SKIING, GOLFING,
19 SWIMMING, TENNIS, ICE SKATING OR ICE HOCKEY FACILITIES, TOGETHER WITH
20 ALL BUILDINGS, STRUCTURES, MACHINERY, EQUIPMENT, FACILITIES AND APPURTE-
21 NANCES THERETO.
22 S 61. APPLICATION. THE PROVISIONS OF THIS ARTICLE SHALL APPLY TO ALL
23 CAUSES OF ACTION FOR PERSONAL INJURY, INJURY TO PROPERTY OR WRONGFUL
24 DEATH AGAINST A PUBLIC ENTITY.
25 S 62. LIABILITY OF PUBLIC ENTITIES FOR INJURIES SUSTAINED ON OR IN
26 PUBLIC RECREATIONAL FACILITIES. IN ORDER TO ENCOURAGE THE GRANTING OF
27 ACCESS TO PUBLIC RECREATIONAL FACILITIES, IT IS HEREBY DECLARED THAT USE
28 BY THE PUBLIC OF SUCH FACILITIES INCLUDES AN ASSUMPTION OF RISK BY THE
29 USER. NOTWITHSTANDING THE PROVISIONS OF SECTION 5-326 OF THE GENERAL
30 OBLIGATIONS LAW, ACTIONS FOR INJURIES SUSTAINED ON OR IN PUBLIC RECRE-
31 ATIONAL FACILITIES, INCLUDING EQUIPMENT, DEVICES, ATTRACTIONS, RIDES OR
32 OTHERWISE, SHALL BE ALLOWED ONLY IF SUCH INJURIES AROSE FROM WILLFUL,
33 WANTON OR GROSS NEGLIGENCE ON THE PART OF THE PUBLIC ENTITY OR OPERATOR.
34 S 12. Section 3012-a of the civil practice law and rules, as
35 amended by chapter 507 of the laws of 1987, is amended to read as
36 follows:
37 S 3012-a. Certificate of merit in medical, dental and podiatric malp-
38 ractice actions AND ACTIONS AGAINST ALL OTHER PROFESSIONALS. (a) In any
39 action for medical, dental or podiatric malpractice, OR IN ANY ACTION
40 FOR DAMAGES, CONTRIBUTION OR INDEMNITY ARISING OUT OF ALLEGED NEGLIGENCE
41 OF A PROFESSIONAL SUBJECT TO THE PROVISIONS OF TITLE EIGHT OF THE EDUCA-
42 TION LAW, the complaint shall be accompanied by a certificate, executed
43 by the attorney for the plaintiff, OR OTHER PARTY ASSERTING THE CAUSE
44 OF ACTION, declaring that:
45 (1) the attorney has reviewed the facts of the case and has consulted
46 with at least one physician in medical malpractice actions, at least one
47 dentist in dental malpractice actions [or], at least one podiatrist in
48 podiatric malpractice actions, OR AT LEAST ONE PROFESSIONAL IN THE SAME
49 PROFESSION AS THE PERSON OR PERSONS DEFENDANT IN THE SUBJECT SUIT IN
50 OTHER PROFESSIONAL MALPRACTICE OR NEGLIGENCE ACTIONS AND who is licensed
51 to practice in this state or any other state and who the attorney
52 reasonably believes is knowledgeable in the relevant issues involved in
53 the particular action, AND WHO HAS SIGNED AN AFFIDAVIT CONCLUDING THAT
54 THERE IS A REASONABLE BASIS FOR THE COMMENCEMENT OF AN ACTION, SUCH
55 AFFIDAVIT SHALL ACCOMPANY THE CERTIFICATE REQUIRED BY THIS SECTION, and
56 that the attorney has concluded on the basis of such review [and],
A. 8921 9
1 consultation AND AFFIDAVIT that there is a reasonable basis for the
2 commencement of such action; or
3 (2) the attorney was unable to obtain the consultation AND AFFIDA-
4 VIT required by paragraph one of this subdivision because a limitation
5 of time, established by article two of this chapter, would bar the
6 action and that the certificate required by paragraph one of this
7 subdivision could not reasonably be obtained before such time expired.
8 If a certificate is executed pursuant to this subdivision, the
9 certificate required by this section shall be filed within ninety
10 days after service of the complaint; or
11 (3) the attorney was unable to obtain the consultation AND AFFIDAVIT
12 required by paragraph one of this subdivision because the attorney had
13 made three separate good faith attempts with three separate physicians,
14 dentists [or], podiatrists OR SUBJECT PROFESSIONALS, in accordance with
15 the provisions of paragraph one of this subdivision to obtain such
16 consultation AND AFFIDAVIT and none of those contacted would agree to
17 such a consultation AND AFFIDAVIT.
18 (b) Where a certificate is required pursuant to this section, a single
19 certificate shall be filed for each action, even if more than one
20 defendant has been named in the complaint or is subsequently named.
21 (c) Where the attorney intends to rely solely on the doctrine of "res
22 ipsa loquitur", this section shall be inapplicable. In such cases, the
23 complaint shall be accompanied by a certificate, executed by the attor-
24 ney, declaring that the attorney is solely relying on such doctrine and,
25 for that reason, is not filing a certificate required by this section.
26 (d) If a request by the plaintiff for the records of the plaintiff's
27 medical or dental treatment by the defendants has been made and such
28 records have not been produced, the plaintiff shall not be required to
29 serve the certificate required by this section until ninety days after
30 such records have been produced.
31 (e) For purposes of this section, and subject to the provisions of
32 section thirty-one hundred one of this chapter, an attorney who submits
33 a certificate as required by paragraph one or two of subdivision (a) of
34 this section and the physician, dentist [or], podiatrist OR SUBJECT
35 PROFESSIONALS with whom the attorney consulted shall not be required to
36 disclose the identity of the physician, dentist [or], podiatrist OR
37 SUBJECT PROFESSIONALS consulted and the contents of such consultation
38 AND AFFIDAVIT; provided, however, that when the attorney makes a claim
39 under paragraph three of subdivision (a) of this section that he was
40 unable to obtain the required consultation AND AFFIDAVIT with the physi-
41 cian, dentist [or], podiatrist OR SUBJECT PROFESSIONALS, the court may,
42 upon the request of a defendant made prior to compliance by the plain-
43 tiff with the provisions of section thirty-one hundred ONE of this chap-
44 ter, require the attorney to divulge to the court the names of physi-
45 cians, dentists [or], podiatrists OR SUBJECT PROFESSIONALS refusing such
46 consultation AND AFFIDAVIT.
47 (f) The provisions of this section shall not be applicable to a plain-
48 tiff who is not represented by an attorney.
49 (g) The plaintiff may, in lieu of serving the certificate required by
50 this section, provide the defendant or defendants with the information
51 required by paragraph one of subdivision (d) of section thirty-one
52 hundred one of this chapter within the period of time prescribed by this
53 section.
54 (H) THE SUBJECT PROFESSIONAL OR PROFESSIONALS CONSULTED MAY NOT BE A
55 PARTY TO THE LITIGATION.
A. 8921 10
1 (I) FOR PURPOSES OF THIS SECTION, A COMPLAINT SHALL INCLUDE A
2 COMPLAINT, THIRD PARTY COMPLAINT, AN ANSWER CONTAINING A COUNTERCLAIM OR
3 A CROSS CLAIM.
4 S 13. Section 9-103 of the general obligations law, as amended by
5 chapter 408 of the laws of 1979, paragraph a of subdivision 1 as sepa-
6 rately amended by chapters 141 and 286 of the laws of 1984 and paragraph
7 c of subdivision 1 as added by chapter 174 of the laws of 1980, is
8 amended to read as follows:
9 S 9-103. No duty to keep premises safe for certain uses; responsibil-
10 ity for acts of such users. 1. THE LEGISLATURE REAFFIRMS THE PURPOSE OF
11 THIS SECTION WHICH IS TO ENCOURAGE PROPERTY OWNERS TO MAKE LAND AND
12 WATER AREAS AVAILABLE TO THE PUBLIC FOR RECREATIONAL OR CONSERVATION
13 PURPOSES BY LIMITING THEIR POTENTIAL LIABILITY EXPOSURE TOWARD PERSONS
14 ENTERING THEREON FOR SUCH PURPOSES. ITS PROVISIONS SHOULD BE CONSTRUED
15 TO ACCOMPLISH THOSE OBJECTIVES.
16 1-A. DEFINITIONS. AS USED IN THIS SECTION:
17 A. "LANDS USED IN AGRICULTURAL PRODUCTION" MEANS LAND AS DEFINED IN
18 SUBDIVISION FOUR OF SECTION THREE HUNDRED ONE OF THE AGRICULTURE AND
19 MARKETS LAW, EXCEPT THAT THE PARCEL OF LAND MAY BE LESS THAN TEN ACRES
20 AND STILL QUALIFY.
21 B. "OWNER, LESSEE, OR OCCUPANT" MEANS ANY PERSON ENTITLED TO THE
22 EXCLUSIVE OR NON-EXCLUSIVE USE OR POSSESSION OF THE PREMISES, INCLUDING
23 HOLDERS OF CONSERVATION AND TRAIL EASEMENTS.
24 C. "UNDEVELOPED PREMISES" MEANS PROPERTY EXISTING IN ITS NATURALLY
25 OCCURRING STATE, WITHOUT STRUCTURES, IMPROVEMENTS OR MANMADE OBJECTS
26 CONSTRUCTED, SITUATED OR PLACED ON THE PROPERTY BY THE OWNER, LESSEE,
27 OCCUPANT OR OTHER PERSONS. IF PROPERTY CONTAINS BOTH UNDEVELOPED AND
28 DEVELOPED AREAS, THE OWNER, LESSEE OR OCCUPANT OWES NO DUTY TO KEEP THE
29 UNDEVELOPED PORTION OF THE PREMISES SAFE FOR ENTRY OR USE BY OTHERS FOR
30 RECREATIONAL PURPOSES, BUT NOTHING IN THIS SECTION AFFECTS OR ALTERS THE
31 LIABILITY OF SUCH OWNER, LESSEE OR OCCUPANT TO OTHERS WHO ENTER UPON THE
32 DEVELOPED PORTION OF THE PREMISES. UNDEVELOPED LAND MAY INCLUDE A
33 CLEARED PATH IF IT IS NOT PAVED AND THE PATH SHALL NOT CEASE TO BE
34 "UNDEVELOPED" BECAUSE ITS CREATION OR MAINTENANCE REQUIRES MINOR ALTER-
35 ATION OF LANDSCAPE. LAND DOES NOT CEASE TO BE "UNDEVELOPED" IF THE ONLY
36 MANMADE ALTERATION IS THE PLANTING AND MAINTENANCE OF FLORA, INCLUDING
37 TREES, SHRUBS, FLOWERS, OR GRASS.
38 2. Except as provided in subdivision [two] THREE,
39 a. an owner, lessee or occupant of UNDEVELOPED premises OR OF LAND
40 USED IN AGRICULTURAL PRODUCTION, whether or not posted as provided in
41 section 11-2111 of the environmental conservation law, AND WHETHER OR
42 NOT A FARM, owes no duty to keep the premises safe for entry or use by
43 others for ANY RECREATIONAL USE, INCLUDING BUT NOT LIMITED TO hunting,
44 fishing, organized gleaning as defined in section seventy-one-y of the
45 agriculture and markets law, canoeing, boating, trapping, hiking, cross-
46 country skiing, tobogganing, sledding, speleological activities, horse-
47 back riding, bicycle riding, hang gliding, motorized vehicle operation
48 for recreational purposes, snowmobile operation, cutting or gathering of
49 wood for non-commercial purposes or training of dogs, or to give warning
50 of any hazardous condition or use of or structure or activity on such
51 premises to persons entering for such purposes;
52 b. an owner, lessee or occupant of premises who gives permission to
53 another to pursue any such activities upon such premises does not there-
54 by (1) extend any assurance that the premises are safe for such purpose,
55 or (2) constitute the person to whom permission is granted an invitee to
56 whom a duty of care is owed, or (3) assume responsibility for or incur
A. 8921 11
1 liability for any injury to person or property caused by any act of
2 persons to whom the permission is granted.
3 c. an owner, lessee or occupant of a farm, as defined in section six
4 hundred seventy-one of the labor law, whether or not posted as provided
5 in section 11-2111 of the environmental conservation law, owes no duty
6 to keep such farm safe for entry or use by a person who enters or
7 remains in or upon such farm without consent or privilege, or to give
8 warning of any hazardous condition or use of or structure or activity on
9 such farm to persons so entering or remaining. This shall not be inter-
10 preted, or construed, as a limit on liability for acts of gross negli-
11 gence in addition to those other acts referred to in subdivision [two]
12 THREE of this section.
13 [2.] 3. This section does not limit the liability which would other-
14 wise exist:
15 a. for willful or malicious failure to guard, or to warn against, a
16 dangerous condition, use, structure or activity; or
17 b. for injury suffered in any case where permission to pursue any of
18 the activities enumerated in this section was granted for a consider-
19 ation other than the consideration, if any, paid to said landowner by
20 the state or federal government, or permission to train dogs was granted
21 for a consideration other than that provided for in section 11-0925 of
22 the environmental conservation law; or
23 c. for injury caused, by acts of persons to whom permission to pursue
24 any of the activities enumerated in this section was granted, to other
25 persons as to whom the person granting permission, or the owner, lessee
26 or occupant of the premises, owed a duty to keep the premises safe or to
27 warn of danger.
28 [3.] 4. Nothing in this section creates a duty of care or ground of
29 liability for injury to person or property.
30 5. NO CAUSE OF ACTION SHALL ARISE AGAINST THE OWNER, TENANT OR LESSEE
31 OF LAND OR PREMISES FOR INJURIES TO ANY PERSON, OTHER THAN AN EMPLOYEE
32 OR CONTRACTOR OF THE OWNER, TENANT OR LESSEE, WHO IS ON THE LAND OR
33 PREMISES FOR THE PURPOSE OF PICKING AND PURCHASING AGRICULTURAL OR FARM
34 PRODUCTS AT A FARM OR "U-PICK" OPERATION, UNLESS THE PERSON'S INJURIES
35 WERE CAUSED BY A CONDITION WHICH INVOLVED AN UNREASONABLE RISK OF HARM
36 AND ALL OF THE FOLLOWING APPLY:
37 A. THE OWNER, TENANT OR LESSEE KNEW, HAD REASON TO KNOW OF, OR REASON-
38 ABLY SHOULD HAVE KNOWN OF THE CONDITION OR RISK.
39 B. THE OWNER, TENANT OR LESSEE FAILED TO EXERCISE REASONABLE CARE TO
40 MAKE THE CONDITION SAFE, OR TO WARN THE PERSON OF THE CONDITION OR RISK.
41 S 14. Section 214-d of the civil practice law and rules is REPEALED
42 and a new section 214-d is added to read as follows:
43 S 214-D. LIMITATIONS ON CERTAIN ACTIONS AGAINST PROFESSIONAL ENGI-
44 NEERS, ARCHITECTS, LANDSCAPE ARCHITECTS, LAND SURVEYORS OR CONSTRUCTION
45 CONTRACTORS. 1. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION TWO OF THIS
46 SECTION, NO ACTION TO RECOVER DAMAGES FOR INJURY TO THE PERSON OR FOR
47 WRONGFUL DEATH OR FOR DAMAGE TO PROPERTY NOR ANY ACTION FOR CONTRIBUTION
48 OR INDEMNITY FOR DAMAGES SUSTAINED ON ACCOUNT OF SUCH INJURY OR WRONGFUL
49 DEATH OR DAMAGE TO PROPERTY ARISING FROM ANY DEFECT IN THE STRUCTURE OR
50 IMPROVEMENT RESULTING FROM THE DESIGN, PLANNING OR SUPERVISION OF
51 CONSTRUCTION OF AN IMPROVEMENT TO REAL PROPERTY SHALL BE BROUGHT AGAINST
52 A PROFESSIONAL ENGINEER, ARCHITECT, LANDSCAPE ARCHITECT, LAND SURVEYOR
53 OR CONSTRUCTION CONTRACTOR MORE THAN TEN YEARS AFTER THE COMPLETION OF
54 SUCH IMPROVEMENT.
55 2. IF, BY REASON OF SUCH DEFECT, AN INJURY TO THE PERSON OR AN INJURY
56 CAUSING WRONGFUL DEATH OR AN INJURY TO PROPERTY OCCURS DURING THE TENTH
A. 8921 12
1 YEAR AFTER COMPLETION, AN ACTION TO RECOVER DAMAGES FOR SUCH INJURY OR
2 WRONGFUL DEATH OR DAMAGE TO PROPERTY MAY BE BROUGHT WITHIN ONE YEAR
3 AFTER THE DATE ON WHICH SUCH INJURY OCCURRED, BUT IN NO EVENT MAY SUCH
4 ACTION BE BROUGHT MORE THAN ELEVEN YEARS AFTER THE COMPLETION OF THE
5 IMPROVEMENT.
6 3. EXCEPT AS PROVIDED IN SUBDIVISION TWO OF THIS SECTION, IN THE
7 EVENT THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION SHALL HAVE
8 REDUCED THE PERIOD DURING WHICH AN ACTION AGAINST A PROFESSIONAL ENGI-
9 NEER, ARCHITECT, LANDSCAPE ARCHITECT, LAND SURVEYOR OR CONSTRUCTION
10 CONTRACTOR COULD HAVE OTHERWISE BEEN BROUGHT PURSUANT TO ANY OTHER
11 PROVISION OF LAW, RULE OR REGULATION, THE CLAIMANT SHALL, IN THAT EVENT,
12 BE ENTITLED TO INSTITUTE ANY SUCH ACTION FOR A PERIOD OF ONE YEAR AFTER
13 THE EFFECTIVE DATE OF THIS SECTION.
14 4. THE LIMITATIONS PRESCRIBED BY THIS SECTION SHALL NOT APPLY TO
15 ACTIONS BROUGHT BY ONE IN CONTRACTUAL OR PROFESSIONAL PRIVITY WITH THE
16 ENGINEER, ARCHITECT, LANDSCAPE ARCHITECT, LAND SURVEYOR OR CONSTRUCTION
17 CONTRACTOR AND SHALL NOT BE ASSERTED BY WAY OF DEFENSE BY ANY PERSON IN
18 ACTUAL POSSESSION OR CONTROL AS OWNER, TENANT, OR OTHERWISE, OF SUCH AN
19 IMPROVEMENT AT THE TIME ANY DEFECT IN SUCH IMPROVEMENT CONSTITUTES THE
20 PROXIMATE CAUSE OF THE INJURY OR DEATH FOR WHICH IT IS PROPOSED TO BRING
21 AN ACTION.
22 5. FOR PURPOSES OF THIS SECTION AN IMPROVEMENT SHALL BE DEEMED TO BE
23 "COMPLETED" (A) WHEN, AFTER THE IMPROVEMENT HAS BEEN STARTED, A PERMA-
24 NENT CERTIFICATE OF OCCUPANCY IS ISSUED BY THE MUNICIPALITY IN WHICH THE
25 IMPROVEMENT IS SITUATED, IF SUCH IS REQUIRED OR IS ACTUALLY ISSUED
26 PURSUANT TO LAW OR REGULATION; OR (B) IF A PUBLIC IMPROVEMENT, UPON THE
27 ACCEPTANCE OF THE IMPROVEMENT BY THE OWNER, IF A CERTIFICATE OF OCCUPAN-
28 CY IS NOT REQUIRED AND HAS NOT BEEN ISSUED; OR (C) ON THE EARLIER OF THE
29 FOLLOWING DATES, IF THE PROVISIONS OF PARAGRAPHS (A) AND (B) OF THIS
30 SUBDIVISION DO NOT APPLY (I) FOUR MONTHS PRIOR TO THE LAST DAY ON WHICH
31 MECHANIC'S LIEN, RESULTING FROM WORK PERFORMED OR MATERIALS FURNISHED
32 WITH RESPECT TO SUCH IMPROVEMENT, CAN BE FILED; OR (II) UPON THE OWNER'S
33 FINAL PAYMENT FOR SERVICES RENDERED OR MATERIALS SUPPLIED WITH RESPECT
34 TO SUCH IMPROVEMENT.
35 6. AN ARCHITECT, ENGINEER, LANDSCAPE ARCHITECT, OR LAND SURVEYOR SHALL
36 MEAN A PERSON LICENSED OR REGISTERED AS AN ARCHITECT, ENGINEER, LAND-
37 SCAPE ARCHITECT, LAND SURVEYOR OR CONSTRUCTION CONTRACTOR, PURSUANT TO
38 THE PROVISIONS OF THE EDUCATION LAW OR ANY PARTNERSHIP, CORPORATION OR
39 ANY OTHER ENTITY LAWFULLY PERFORMING ARCHITECTURAL, ENGINEERING, LAND-
40 SCAPE ARCHITECTURAL OR SURVEYING SERVICES.
41 S 15. Subdivisions 4 and 5 of section 214 of the civil practice law
42 and rules, as separately amended by chapters 485 and 682 of the laws of
43 1986, are amended to read as follows:
44 4. an action to recover damages for an injury to property except as
45 provided in [section] SECTIONS 214-c, 214-D AND 214-F;
46 5. an action to recover damages for a personal injury except as
47 provided in sections 214-b, 214-c, 214-D, 214-F and 215;
48 S 16. Subdivision (h) of rule 3211 and subdivision (i) of rule 3212 of
49 the civil practice law and rules are REPEALED.
50 S 17. The general obligations law is amended by adding a new article
51 18-B to read as follows:
52 ARTICLE 18-B
53 EQUINE ACTIVITY SAFETY CODE
54 SECTION 18-301. SHORT TITLE.
55 18-302. DEFINITIONS.
56 18-303. LIABILITY OF PERSONS INVOLVED IN EQUINE ACTIVITIES.
A. 8921 13
1 18-304. LIMITATION OF LIABILITY.
2 18-305. POSTING AND NOTIFICATION.
3 S 18-301. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED
4 AS THE "EQUINE ACTIVITY SAFETY CODE ACT".
5 S 18-302. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE, THE
6 FOLLOWING WORDS OR PHRASES SHALL BE DEFINED AS FOLLOWS:
7 1. "ENGAGES IN AN EQUINE ACTIVITY" MEANS RIDING, TRAINING, ASSISTING
8 IN VETERINARY TREATMENT OF, DRIVING, OR BEING A PASSENGER UPON AN
9 EQUINE, WHETHER MOUNTED OR UNMOUNTED, VISITING OR TOURING OR UTILIZING
10 AN EQUINE FACILITY AS PART OF AN ORGANIZED EVENT OR ACTIVITY, OR ANY
11 PERSON ASSISTING A PARTICIPANT OR SHOW MANAGEMENT. THE TERM "ENGAGES IN
12 AN EQUINE ACTIVITY" DOES NOT INCLUDE BEING A SPECTATOR AT AN EQUINE
13 ACTIVITY, EXCEPT IN CASES WHERE THE SPECTATOR PLACES HIMSELF IN AN UNAU-
14 THORIZED AREA OR IN IMMEDIATE PROXIMITY TO THE EQUINE ACTIVITY.
15 2. "EQUINE" MEANS A HORSE, PONY, MULE OR DONKEY.
16 3. "EQUINE ACTIVITY" MEANS:
17 (A) EQUINE SHOWS, FAIRS, COMPETITIONS, PERFORMANCES OR PARADES THAT
18 INVOLVE ANY OR ALL BREEDS OF EQUINES AND ANY OF THE EQUINE DISCIPLINES,
19 INCLUDING, BUT NOT LIMITED TO DRESSAGE, HUNTER AND JUMPER HORSE SHOWS,
20 GRAND PRIX JUMPING, THREE-DAY EVENTS, COMBINED TRAINING, RODEOS, RIDING,
21 DRIVING, PULLING, CUTTING, POLO, STEEPLECHASING, ENGLISH AND WESTERN
22 PERFORMANCE RIDING, ENDURANCE TRAIL RIDING, GYMKHANA GAMES, AND HUNTING.
23 (B) EQUINE TRAINING OR TEACHING ACTIVITIES OR BOTH.
24 (C) THE BOARDING OF EQUINES; INCLUDING NORMAL DAILY CARE THEREOF.
25 (D) RIDING, INSPECTING OR EVALUATING BY A PURCHASER OR AN AGENT AN
26 EQUINE BELONGING TO ANOTHER, WHETHER OR NOT THE OWNER HAS RECEIVED SOME
27 MONETARY CONSIDERATION OR OTHER THING OF VALUE FOR THE USE OF THE EQUINE
28 OR IS PERMITTING A PROSPECTIVE PURCHASER OF THE EQUINE TO RIDE, INSPECT
29 OR EVALUATE THE EQUINE.
30 (E) RIDES, TRIPS, HUNTS OR OTHER EQUINE ACTIVITIES OF ANY TYPE HOWEVER
31 INFORMAL OR IMPROMPTU THAT ARE SPONSORED BY AN EQUINE ACTIVITY SPONSOR.
32 (F) PLACING OR REPLACING HORSESHOES OR HOOF TRIMMING ON AN EQUINE.
33 (G) PROVIDING OR ASSISTING IN VETERINARY TREATMENT OF AN EQUINE.
34 4. "EQUINE ACTIVITY SPONSOR" MEANS AN INDIVIDUAL, GROUP, CLUB, PART-
35 NERSHIP, LIMITED LIABILITY COMPANY OR CORPORATION, WHETHER OR NOT THE
36 SPONSOR IS OPERATING FOR PROFIT OR NONPROFIT, WHICH SPONSORS, ORGAN-
37 IZES OR PROVIDES THE FACILITIES FOR, AN EQUINE ACTIVITY, INCLUDING BUT
38 NOT LIMITED TO: PONY CLUBS, 4-H CLUBS, HUNT CLUBS, RIDING CLUBS, SCHOOL
39 AND COLLEGE-SPONSORED CLASSES, PROGRAMS AND ACTIVITIES, THERAPEUTIC
40 RIDING PROGRAMS, STABLE AND FARM OWNERS AND OPERATORS, INSTRUCTORS, AND
41 PROMOTERS OF EQUINE FACILITIES, INCLUDING BUT NOT LIMITED TO FARMS,
42 STABLES, CLUBHOUSES, PONY RIDE STRINGS, FAIRS, AND ARENAS AT WHICH THE
43 ACTIVITY IS HELD.
44 5. "EQUINE PROFESSIONAL" MEANS A PERSON ENGAGED FOR COMPENSATION:
45 (A) IN INSTRUCTING A PARTICIPANT OR RENTING TO A PARTICIPANT AN EQUINE
46 FOR THE PURPOSE OF RIDING, DRIVING OR BEING A PASSENGER UPON THE EQUINE;
47 (B) IN RENTING EQUIPMENT OR TACK TO A PARTICIPANT;
48 (C) TO PROVIDE DAILY CARE OF HORSES BOARDED AT AN EQUINE FACILITY; OR
49 (D) TO TRAIN AN EQUINE.
50 6. "INHERENT RISKS OF EQUINE ACTIVITIES" MEANS THOSE DANGERS OR CONDI-
51 TIONS WHICH ARE AN INTEGRAL PART OF EQUINE ACTIVITIES, INCLUDING BUT NOT
52 LIMITED TO:
53 (A) THE PROPENSITY OF EQUINES TO BEHAVE IN WAYS THAT MAY RESULT IN
54 INJURY, HARM OR DEATH TO PERSONS ON OR AROUND THEM;
A. 8921 14
1 (B) THE UNPREDICTABILITY OF AN EQUINE'S REACTION TO SUCH THINGS AS
2 SOUNDS, SUDDEN MOVEMENT, AND UNFAMILIAR OBJECTS, PERSONS OR OTHER
3 ANIMALS;
4 (C) CERTAIN HAZARDS SUCH AS SURFACE AND SUBSURFACE CONDITIONS INCLUD-
5 ING, BUT NOT LIMITED TO, ROCKS, FOREST GROWTH, DEBRIS, BRANCHES, TREES,
6 ROOTS, STUMPS OR OTHER NATURAL OBJECTS;
7 (D) COLLISIONS WITH OTHER EQUINES OR OBJECTS; AND
8 (E) THE POTENTIAL OF A PARTICIPANT TO ACT IN A NEGLIGENT MANNER THAT
9 MAY CONTRIBUTE TO INJURY TO THE PARTICIPANT OR OTHERS, SUCH AS FAILING
10 TO MAINTAIN CONTROL OVER THE ANIMAL OR NOT ACTING WITHIN HIS OR HER
11 ABILITY.
12 7. "PARTICIPANT" MEANS ANY PERSON, WHETHER AMATEUR OR PROFESSIONAL,
13 WHO ENGAGES IN AN EQUINE ACTIVITY, WHETHER OR NOT A FEE IS PAID TO
14 PARTICIPATE IN THE EQUINE ACTIVITY.
15 S 18-303. LIABILITY OF PERSONS INVOLVED IN EQUINE ACTIVITIES. 1.
16 NOTHING IN SECTION 18-304 OF THIS ARTICLE SHALL PREVENT OR LIMIT THE
17 LIABILITY OF AN EQUINE ACTIVITY SPONSOR OR AN EQUINE PROFESSIONAL, IF
18 THE EQUINE ACTIVITY SPONSOR OR EQUINE PROFESSIONAL:
19 (A) (1) PROVIDED THE EQUIPMENT OR TACK, AND KNEW OR SHOULD HAVE KNOWN
20 THAT THE EQUIPMENT OR TACK WAS FAULTY, AND SUCH EQUIPMENT OR TACK WAS
21 FAULTY TO THE EXTENT THAT IT DID CAUSE THE INJURY; OR
22 (2) PROVIDED THE EQUINE AND FAILED TO MAKE REASONABLE AND PRUDENT
23 EFFORTS TO DETERMINE THE ABILITY OF THE PARTICIPANT TO ENGAGE SAFELY IN
24 THE EQUINE ACTIVITY, AND DETERMINE THE ABILITY OF THE PARTICIPANT TO
25 SAFELY MANAGE THE PARTICULAR EQUINE BASED ON THE PARTICIPANT'S REPRESEN-
26 TATIONS OF HIS ABILITY;
27 (B) OWNS, LEASES, RENTS, HAS AUTHORIZED USE OF OR IS OTHERWISE IN
28 LAWFUL POSSESSION AND CONTROL OF THE LAND, OR FACILITIES UPON WHICH THE
29 PARTICIPANT SUSTAINED INJURIES BECAUSE OF A DANGEROUS LATENT CONDITION
30 WHICH WAS KNOWN OR SHOULD HAVE BEEN KNOWN TO THE EQUINE ACTIVITY SPONSOR
31 OR EQUINE PROFESSIONAL AND FOR WHICH WARNING SIGNS, PURSUANT TO SUBDIVI-
32 SION FOUR OF SECTION 18-302 OF THIS ARTICLE HAVE NOT BEEN CONSPICUOUSLY
33 POSTED;
34 (C) COMMITS AN ACT OR OMISSION THAT CONSTITUTES WILLFUL OR WANTON
35 DISREGARD FOR THE SAFETY OF THE PARTICIPANT, AND THAT ACT OR OMISSION
36 CAUSED THE INJURY;
37 (D) INTENTIONALLY INJURES THE PARTICIPANT.
38 2. THIS SECTION SHALL NOT APPLY TO THE HORSE RACING ACTIVITY AUTHOR-
39 IZED PURSUANT TO ARTICLE TWO, THREE OR FOUR OF THE RACING, PARI-MUTUEL
40 WAGERING AND BREEDING LAW.
41 S 18-304. LIMITATION OF LIABILITY. 1. EXCEPT AS PROVIDED IN SUBDI-
42 VISION TWO OF SECTION 18-303 OF THIS ARTICLE, AN EQUINE ACTIVITY SPON-
43 SOR, AN EQUINE PROFESSIONAL OR ANY OTHER PERSON, WHICH SHALL
44 INCLUDE A LIMITED LIABILITY COMPANY, CORPORATION OR PARTNERSHIP, SHALL
45 NOT BE LIABLE FOR AN INJURY TO OR THE DEATH OF A PARTICIPANT RESULTING
46 FROM THE INHERENT RISKS OF EQUINE ACTIVITIES AND, EXCEPT AS
47 PROVIDED IN SUBDIVISION TWO OF SECTION 18-303 OF THIS ARTICLE, NO
48 PARTICIPANT NOR PARTICIPANT'S REPRESENTATIVE SHALL MAKE ANY CLAIM
49 AGAINST, MAINTAIN AN ACTION AGAINST OR RECOVER FROM AN EQUINE ACTIVITY
50 SPONSOR, AN EQUINE PROFESSIONAL OR ANY OTHER PERSON FOR INJURY, LOSS,
51 DAMAGE OR DEATH OF THE PARTICIPANT RESULTING FROM ANY OF THE INHERENT
52 RISKS OF EQUINE ACTIVITIES.
53 2. NOTHING IN THIS ARTICLE SHALL LIMIT THE APPLICATION OF THE
54 PROVISIONS OF SECTION 9-103 OF THIS CHAPTER.
55 S 18-305. POSTING AND NOTIFICATION. 1. EVERY EQUINE PROFESSIONAL
56 SHALL POST AND MAINTAIN SIGNS WHICH CONTAIN THE WARNING NOTICE SPECIFIED
A. 8921 15
1 IN SUBDIVISION TWO OF THIS SECTION. SUCH SIGNS SHALL BE PLACED IN A
2 CLEARLY VISIBLE LOCATION IN THE PROXIMITY OF THE EQUINE ACTIVITY. THE
3 WARNING NOTICE SPECIFIED IN SUBDIVISION TWO OF THIS SECTION SHALL APPEAR
4 ON THE SIGN IN BLACK LETTERS, WITH EACH LETTER TO BE A MINIMUM OF ONE
5 INCH IN HEIGHT. EVERY WRITTEN CONTRACT ENTERED INTO BY AN EQUINE PROFES-
6 SIONAL FOR THE PROVIDING OF PROFESSIONAL SERVICES, INSTRUCTION, OR THE
7 RENTAL OF EQUIPMENT OR TACK OR AN EQUINE TO A PARTICIPANT, WHETHER OR
8 NOT THE CONTRACT INVOLVES EQUINE ACTIVITIES ON OR OFF THE LOCATION OR
9 SITE OF THE EQUINE PROFESSIONAL'S BUSINESS, SHALL CONTAIN IN CLEARLY
10 READABLE PRINT THE WARNING NOTICE SPECIFIED IN SUBDIVISION TWO OF THIS
11 SECTION.
12 2. THE SIGNS AND CONTRACTS DESCRIBED IN SUBDIVISION ONE OF THIS
13 SECTION SHALL CONTAIN THE FOLLOWING WARNING NOTICE:
14 WARNING
15 UNDER NEW YORK LAW, AN EQUINE PROFESSIONAL OR EQUINE ACTIVITY SPONSOR
16 IS NOT LIABLE FOR AN INJURY TO, OR THE DEATH OF, A PARTICIPANT IN EQUINE
17 ACTIVITIES RESULTING FROM THE INHERENT RISKS OF EQUINE ACTIVITIES,
18 PURSUANT TO SECTION 18-304 OF THE GENERAL OBLIGATIONS LAW.
19 S 18. The civil practice law and rules is amended by adding a new
20 section 214-f to read as follows:
21 S 214-F. ACTIONS ALLEGING INJURY FROM A PRODUCT; REPOSE. (A) NOTWITH-
22 STANDING ANY LAW TO THE CONTRARY, AND SUBJECT TO THE PROVISIONS OF
23 SUBDIVISIONS (B), (C) AND (D) OF THIS SECTION, NO CAUSE OF ACTION ARIS-
24 ING OUT OF THE MANUFACTURE, SALE OR MARKETING OF A PRODUCT MAY BE
25 COMMENCED MORE THAN TEN YEARS AFTER ANY SUCH PRODUCT IS DELIVERED TO THE
26 FIRST PURCHASER OR LESSEE.
27 (B) THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION SHALL NOT BAR A
28 PRODUCT LIABILITY ACTION AGAINST A SUBJECT DEFENDANT WHO SHALL HAVE MADE
29 AN EXPRESS WARRANTY, IN WRITING, AS TO THE SAFETY OR LIFE EXPECTANCY OF
30 THE SPECIFIC PRODUCT INVOLVED, WHICH PERIOD OF WARRANTY IS LONGER THAN
31 TEN YEARS, EXCEPT THAT SUCH SUBDIVISION SHALL APPLY AT THE EXPIRATION OF
32 THAT WARRANTY.
33 (C) IF A PRODUCT LIABILITY CAUSE OF ACTION ACCRUES DURING THE TEN YEAR
34 PERIOD DESCRIBED IN SUBDIVISION (A) OF THIS SECTION BUT AT A TIME LESS
35 THAN TWO YEARS PRIOR TO THE EXPIRATION OF SUCH PERIOD, SUCH ACTION MAY
36 BE BROUGHT WITHIN TWO YEARS AFTER ACCRUAL THEREOF; PROVIDED, HOWEVER,
37 THAT IN NO EVENT MAY SUCH ACTION BE BROUGHT MORE THAN TWELVE YEARS AFTER
38 THE PRODUCT WAS DELIVERED TO THE FIRST PURCHASER OR LESSEE.
39 (D) EXCEPT AS PROVIDED IN SUBDIVISIONS (B) AND (C) OF THIS SECTION, IN
40 THE EVENT THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION SHALL HAVE
41 REDUCED THE PERIOD DURING WHICH A PRODUCT LIABILITY ACTION COULD HAVE
42 OTHERWISE BEEN BROUGHT PURSUANT TO ANY OTHER PROVISION OF LAW, RULE OR
43 REGULATION, THE CLAIMANT SHALL, IN THAT EVENT, BE ENTITLED TO INSTITUTE
44 ANY SUCH ACTION FOR A PERIOD OF ONE YEAR AFTER THE EFFECTIVE DATE OF
45 THIS SECTION.
46 (E) FOR PURPOSES OF THIS SECTION, "CAUSE OF ACTION ARISING OUT OF THE
47 MANUFACTURE, SALE OR MARKETING OF A PRODUCT" MEANS ANY ACTION, INCLUDING
48 BUT NOT LIMITED TO A CONTRIBUTION, INDEMNITY OR RESTITUTION ACTION,
49 BROUGHT FOR OR ON ACCOUNT OF PERSONAL INJURY, WRONGFUL DEATH, INJURY TO
50 PROPERTY OR EXPENDITURE OF FUNDS THAT IS ALLEGED TO HAVE RESULTED FROM
51 THE MANUFACTURE, SALE, USE, CONSTRUCTION, DESIGN, FORMULATION, DEVELOP-
52 MENT OF STANDARDS, PREPARATION, PROCESSING, ASSEMBLY, REBUILDING, TEST-
53 ING, LISTING, CERTIFYING, MARKETING, ADVERTISING, PACKAGING OR LABELING
54 OF ANY PRODUCT, OR ANY WARNING OR INSTRUCTION OR LACK OF WARNING OR
55 INSTRUCTION ASSOCIATED WITH THAT PRODUCT, REGARDLESS OF THE THEORY OF
56 LIABILITY EMPLOYED.
A. 8921 16
1 (F) NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION OR ANY
2 OTHER PROVISION OF LAW, RULE OR REGULATION, NO CLAIM MAY BE BROUGHT
3 AGAINST A DEFENDANT IN ANY CIVIL ACTION IF EITHER (I) WITH RESPECT TO
4 ALL CIVIL ACTIONS, INCLUDING ACTIONS SUBJECT HEREIN, THE CLAIM IS BASED
5 IN WHOLE OR IN PART ON ANY ACT OR OMISSION OF THE DEFENDANT WHICH
6 OCCURRED MORE THAN TWENTY-FIVE YEARS BEFORE THE CLAIM WAS BROUGHT; OR
7 (II) WITH RESPECT TO ANY SUCH ACTIONS SUBJECT HEREIN, THE CLAIM IS
8 BROUGHT MORE THAN TWENTY-FIVE YEARS AFTER THE DATE OF DELIVERY OF THE
9 PRODUCT TO THE FIRST PURCHASER OR LESSEE, WHICH PRODUCT IS ALLEGED TO
10 HAVE CAUSED THE PLAINTIFF'S INJURY OR DAMAGE.
11 S 19. The civil practice law and rules is amended by adding a new
12 article 14-B to read as follows:
13 ARTICLE 14-B
14 PRODUCT LIABILITY ACTIONS;
15 SPECIFIC DEFENSES
16 1420. POSTMANUFACTURE CHANGES.
17 1421. SEALED CONTAINERS.
18 1422. STATE OF THE ART DESIGN.
19 S 1420. POSTMANUFACTURE CHANGES. IN A PRODUCT LIABILITY ACTION,
20 EVIDENCE OF MEASURES TAKEN BY THE MANUFACTURER OR SELLER AFTER AN EVENT,
21 WHICH IF TAKEN PREVIOUSLY WOULD HAVE MADE THE EVENT LESS LIKELY TO
22 OCCUR, IS NOT ADMISSIBLE TO PROVE NEGLIGENCE OR CULPABLE CONDUCT OR TO
23 PROVE A DEFECT IN THE PRODUCT. EVIDENCE OF SUBSEQUENT MEASURES MAY,
24 HOWEVER, BE ADMISSIBLE WHEN OFFERED TO IMPEACH OR AS PROOF OF OWNERSHIP,
25 CONTROL OR FEASIBILITY OF PRECAUTIONARY MEASURES, IF SUCH ISSUES ARE
26 CONTROVERTED.
27 S 1421. SEALED CONTAINERS. IN ANY PRODUCT LIABILITY ACTION A PARTY MAY
28 ASSERT AS A DEFENSE IN SUCH ACTION THAT HE OR SHE IS NOT THE MANUFACTUR-
29 ER OF THE PRODUCT IN QUESTION AND THAT SUCH PRODUCT WAS ACQUIRED AND
30 SOLD BY HIM OR HER IN A SEALED CONTAINER OR THAT THE PRODUCT WAS
31 ACQUIRED AND SOLD BY HIM OR HER UNDER CIRCUMSTANCES IN WHICH HE OR SHE
32 WAS AFFORDED NO REASONABLE OPPORTUNITY TO INSPECT THE PRODUCT IN SUCH A
33 MANNER WHICH WOULD HAVE OR SHOULD HAVE, IN THE EXERCISE OF REASONABLE
34 CARE, REVEALED THE EXISTENCE OF THE DEFECTIVE CONDITION; PROVIDED,
35 HOWEVER, THAT THE DEFENSE SET FORTH IN THIS SECTION SHALL NOT BE AVAIL-
36 ABLE IF (A) THE MANUFACTURER IS NOT SUBJECT TO SERVICE OF PROCESS UNDER
37 THE LAWS OF THE STATE IN WHICH THE PLAINTIFF BRINGS THE ACTION, OR (B)
38 THE MANUFACTURER HAS BEEN JUDICIALLY DECLARED INSOLVENT AND IS UNABLE TO
39 PAY ITS DEBTS AS THEY BECOME DUE IN THE ORDINARY COURSE OF BUSINESS, OR
40 (C) THE COURT DETERMINES THAT THE PLAINTIFF WOULD BE UNABLE TO ENFORCE A
41 JUDGMENT AGAINST THE MANUFACTURER. THE PROVISIONS OF THIS SECTION SHALL
42 NOT APPLY TO ACTIONS BASED UPON BREACH OF EXPRESS WARRANTY, NEGLIGENCE
43 OR FRAUDULENT MISREPRESENTATION OF THE SELLER.
44 S 1422. STATE OF THE ART DESIGN. (A) IN ANY PRODUCT LIABILITY ACTION
45 BASED UPON DEFECTIVE DESIGN, A PARTY SHALL NOT BE LIABLE UNLESS THE
46 PLAINTIFF PROVES BY A PREPONDERANCE OF THE EVIDENCE THAT, AT THE TIME
47 THE PRODUCT LEFT THE CONTROL OF THE PARTY, THERE EXISTED A FEASIBLE
48 ALTERNATIVE DESIGN THAT WOULD HAVE PREVENTED THE HARM WITHOUT SUBSTAN-
49 TIALLY IMPAIRING THE USEFULNESS OR DESIRABILITY OF THE PRODUCT TO USERS.
50 (B) IN ANY PRODUCT LIABILITY ACTION BASED UPON DEFECTIVE DESIGN, A
51 PARTY SHALL NOT BE LIABLE UNLESS THE PLAINTIFF PROVES BY A PREPONDERANCE
52 OF THE EVIDENCE THAT THE PRODUCT DESIGN WAS THE IMMEDIATE, PHYSICAL AND
53 PRODUCING CAUSE OF THE INJURY OR DAMAGE OF WHICH THE PLAINTIFF
54 COMPLAINS, AND THAT, IF A FEASIBLE ALTERNATIVE DESIGN AS PROVIDED IN
55 SUBDIVISION (A) OF THIS SECTION WAS MARKETED BY THE DEFENDANT, THE USER
56 OF THE PRODUCT WOULD HAVE RESPONDED BY ALTERING HIS CONDUCT AND THEREBY
A. 8921 17
1 WOULD HAVE AVOIDED OR REDUCED THE INJURY OR DAMAGE OF WHICH THE PLAIN-
2 TIFF COMPLAINS.
3 (C) IN ANY PRODUCT LIABILITY ACTION BASED UPON DEFECTIVE DESIGN, A
4 PARTY SHALL NOT BE LIABLE UNLESS THE PLAINTIFF PROVES BY A PREPONDERANCE
5 OF THE EVIDENCE THAT, AT THE TIME THE PRODUCT LEFT THE CONTROL OF THE
6 PARTY, SUCH PARTY KNEW OR, IN LIGHT OF THEN EXISTING SCIENTIFIC AND
7 TECHNOLOGICAL KNOWLEDGE, REASONABLY SHOULD HAVE KNOWN OF THE DANGER THAT
8 CAUSED THE PLAINTIFF'S HARM.
9 (D) IN ANY PRODUCT LIABILITY ACTION BASED ON DEFECTIVE DESIGN, A PROD-
10 UCT SHALL NOT BE FOUND TO CONTAIN A DEFECT OR BE UNREASONABLY DANGEROUS
11 FOR ITS INTENDED USE IF THE PERSONAL INJURY, PROPERTY DAMAGE OR DEATH
12 FOR WHICH RECOVERY OF DAMAGES IS SOUGHT WAS CAUSED BY AN INHERENT ASPECT
13 OF THE PRODUCT ABOUT WHICH ADEQUATE SPECIFICATIONS, INSTRUCTIONS OR
14 WARNINGS ARE PROVIDED OR WHICH WOULD BE RECOGNIZED AS CAPABLE OF CAUSING
15 HARM BY THE ORDINARY PERSON WHO USES OR CONSUMES THE PRODUCT WITH THE
16 ORDINARY KNOWLEDGE COMMON TO THE CLASS OF PERSONS FOR WHOM THE PRODUCT
17 IS INTENDED.
18 (E) IN ANY PRODUCT LIABILITY ACTION BASED ON DEFECTIVE DESIGN, A PROD-
19 UCT SHALL NOT BE FOUND TO CONTAIN A DEFECT OR BE UNREASONABLY DANGEROUS
20 FOR ITS INTENDED USE IF THE PERSONAL INJURY, PROPERTY DAMAGE OR DEATH
21 FOR WHICH RECOVERY OF DAMAGES IS SOUGHT WAS CAUSED BY AN UNAVOIDABLY
22 UNSAFE PRODUCT, AS DEFINED IN COMMENT K TO SECTION 402A OF THE RESTATE-
23 MENT (2D) OF TORTS, AND SPECIFICATIONS, WARNINGS OR INSTRUCTIONS ARE
24 PROVIDED TO THE EXTENT REQUIRED BY THIS ARTICLE.
25 S 20. The labor law is amended by adding a new section 742 to read as
26 follows:
27 S 742. DISCLOSURE OF EMPLOYMENT RELATED INFORMATION; PRESUMPTIONS;
28 CAUSES OF ACTION; DEFINITIONS. 1. ANY EMPLOYER WHO, UPON REQUEST BY A
29 PROSPECTIVE EMPLOYER OR A CURRENT OR FORMER EMPLOYEE, PROVIDES ACCURATE
30 INFORMATION ABOUT A CURRENT OR FORMER EMPLOYEE'S JOB PERFORMANCE OR
31 REASONS FOR SEPARATION SHALL BE IMMUNE FROM CIVIL LIABILITY AND OTHER
32 CONSEQUENCES OF SUCH DISCLOSURE PROVIDED SUCH EMPLOYER IS NOT ACTING IN
33 BAD FAITH. AN EMPLOYER SHALL BE CONSIDERED TO BE ACTING IN BAD FAITH
34 ONLY IF IT CAN BE SHOWN BY A PREPONDERANCE OF THE EVIDENCE THAT THE
35 INFORMATION DISCLOSED WAS KNOWINGLY FALSE AND DELIBERATELY MISLEADING.
36 2. ANY PROSPECTIVE EMPLOYER WHO REASONABLY RELIES ON INFORMATION
37 PERTAINING TO AN EMPLOYEE'S JOB PERFORMANCE OR REASONS FOR SEPARATION,
38 DISCLOSED BY A FORMER EMPLOYER, SHALL BE IMMUNE FROM CIVIL LIABILITY
39 INCLUDING LIABILITY FOR NEGLIGENT HIRING, NEGLIGENT RETENTION, AND OTHER
40 CAUSES OF ACTION RELATED TO THE HIRING OF SUCH EMPLOYEE, BASED UPON SUCH
41 REASONABLE RELIANCE, UNLESS FURTHER INVESTIGATION, INCLUDING BUT NOT
42 LIMITED TO A CRIMINAL BACKGROUND CHECK, IS REQUIRED BY LAW.
43 3. AS USED IN THIS SECTION, THE FOLLOWING WORDS AND PHRASES SHALL HAVE
44 THE FOLLOWING MEANINGS UNLESS THE CONTEXT CLEARLY REQUIRES OTHERWISE:
45 (A) "EMPLOYER" MEANS ANY PERSON, FIRM, LIMITED LIABILITY COMPANY OR
46 CORPORATION, INCLUDING THE STATE AND ITS POLITICAL SUBDIVISIONS, AND ANY
47 AGENT THEREOF WITH ONE OR MORE EMPLOYEES, OR INDIVIDUALS PERFORMING
48 SERVICES UNDER ANY CONTRACT OF HIRE OR SERVICE, EXPRESSED OR IMPLIED,
49 ORAL OR WRITTEN.
50 (B) "EMPLOYEE" MEANS ANY PERSON, PAID OR UNPAID, IN THE SERVICE OF AN
51 EMPLOYER.
52 (C) "PROSPECTIVE EMPLOYER" MEANS ANY "EMPLOYER", AS DEFINED IN PARA-
53 GRAPH (A) OF THIS SUBDIVISION, TO WHICH A PROSPECTIVE EMPLOYEE HAS MADE
54 APPLICATION, EITHER ORAL OR WRITTEN, OR FORWARDED A RESUME OR OTHER
55 CORRESPONDENCE EXPRESSING AN INTEREST IN EMPLOYMENT.
A. 8921 18
1 (D) "PROSPECTIVE EMPLOYEE" MEANS ANY PERSON WHO HAS MADE AN APPLICA-
2 TION, EITHER ORAL OR WRITTEN, OR HAS SENT A RESUME OR OTHER CORRESPOND-
3 ENCE INDICATING AN INTEREST IN EMPLOYMENT.
4 (E) "JOB PERFORMANCE" INCLUDES, BUT IS NOT LIMITED TO, ATTENDANCE,
5 ATTITUDE, AWARDS, DEMOTIONS, DUTIES, EFFORT, EVALUATIONS, KNOWLEDGE,
6 SKILLS, PROMOTIONS, AND DISCIPLINARY ACTIONS.
7 S 21. Severability. If any clause, sentence, paragraph, section or
8 part of this act shall be adjudged by any court of competent jurisdic-
9 tion to be invalid and after exhaustion of all further judicial review,
10 the judgment shall not affect, impair, or invalidate the remainder ther-
11 eof, but shall be confined in its operation to the clause, sentence,
12 paragraph, section or part of this act directly involved in the contro-
13 versy in which the judgment shall have been rendered.
14 S 22. This act shall take effect immediately; provided, however, the
15 provisions of sections one, six, seven, eight and nine of this act shall
16 take effect on the one hundred eightieth day after this act shall have
17 become a law; provided further, the provisions of sections fourteen,
18 fifteen and sixteen of this act shall take effect on the first of Janu-
19 ary next succeeding the date on which this act shall have become a law;
20 provided further the provisions of section seventeen of this act shall
21 take effect on the ninetieth day after this act shall have become a law;
22 and provided further, that the provisions of this act shall apply only
23 to causes of action commenced on or after the effective date of each
24 applicable section.
