Updated 5:40 p.m.
A fiscally conservative organization released a report this week proposing a series of reforms to what the group described as the state’s “costly tort laws.”
The report by the Empire Center for Public Policy suggested the state move to a modified comparative fault system, which would prohibit damages for plaintiffs who have been found to be primarily responsible for their own injuries. The report also said the state should eliminate joint liability so that defendants are liable only in proportion to their level of responsibility for an injury.
The authors of the report—Cary Silverman and Mark Behrens, partners at Shook, Hardy & Bacon in Washington, D.C.—claimed that New York’s laws “encourage a proliferation” of torts, which has hindered “infrastructure renewal and economic growth in a state that desperately needs more of both.”
Reforming tort laws would create a “balanced legal environment, reduce costs for those who live and work in New York and improve the state’s economy,” according to the report.
Silverman and Behrens, who is co-chair of the firm’s public policy group, said New York should also move to limit the amount a plaintiff can receive for noneconomic damages, such as pain and suffering. In 1986, under then-Gov. Mario Cuomo, a commission recommended capping the amount a person could receive for personal injury claims against a public entity to $250,000 for noneconomic damages.
The state could also reduce the private and public cost of construction by eliminating the liability under the Scaffold Law, which was enacted in 1885 to impose absolute liabilities on contractors or building owners in an effort to protect their workers. Opponents of the Scaffold Law argue that it raises contractors’ insurance costs and therefore inflates the costs of projects.
In Albany, there have been several unsuccessful measures over the past several years to overhaul the law. In the Democratic-dominated Assembly, Assemblyman John McDonald is proposing legislation that would let courts decide if a worker was partially at fault during an accident.
Matt Funk, president of the New York State Trial Lawyers Association, called the proposals in the Empire Center report “anti-consumer and anti-lawyer.”
“The civil justice system is an important way for regular people to hold big corporations accountable—whether it’s negligent health care providers, contractors who run unsafe construction sites or companies that put workers at risk for mesothelioma from asbestos exposure,” Funk said in an email. “Consumers and patients deserve to have their day in court.”
The head of the Lawsuit Reform Alliance of New York, a tort-reform business group, said the Empire Center’s report is a “catalogue of the damage decades of trial lawyer rule has done to New York’s civil justice system.”
“By simply putting New York’s rules in line with most other states we could save billions. Governor Cuomo and the Legislature should take notice of the commonsense reforms outlined in this report and put a stop to the taxpayers’ subsidy of the lawsuit industry,” said Tom Stebbins, the executive director of the alliance.
This report was updated with additional comment.