NY-EML Employers' Liability Law NY

Short title. This chapter shall be known as the "employers'

liability law."

Employers' liability for injuries. When personal injury is caused

to an employee who is himself in the exercise of due care and diligence

at the time:

1. By reason of any defect in the condition of the ways, works,

machinery, or plant, connected with or used in the business of the

employer which arose from or had not been discovered or remedied owing

to the negligence of the employer or of any person in the service of the

employer and intrusted by him with the duty of seeing that the ways,

works, machinery, or plant, were in proper condition;

2. By reason of the negligence of any person in the service of the

employer intrusted with any superintendence or by reason of the

negligence of any person intrusted with authority to direct, control or

command any employee in the performance of the duty of such employee,

the employee, or in case the injury results in death, the executor or

administrator of a deceased employee who has left him surviving a

husband, wife or next of kin, shall have the same right of compensation

and remedies against the employer as if the employee had not been an

employee of nor in the service of the employer nor engaged in his work.

The provisions of law relating to actions for causing death by

negligence, so far as the same are consistent with this act, shall apply

to an action brought by an executor or administrator of a deceased

employee, suing under the provisions of this article. If an employer

enters into a contract, written or verbal, with an independent

contractor to do part of such employer's work, or if such contractor

enters into a contract with a subcontractor to do all or any part of the

work comprised in such contractor's contract with the employer, such

contract or subcontract shall not bar the liability of the employer for

the injuries to the employees of such contractor or subcontractor,

caused by any defect in the condition of the ways, works, machinery, or

plant, if they are the property of the employer or are furnished by him,

and if such defect arose, or had not been discovered or remedied,

through the negligence of the employer, or of some person intrusted by

him with the duty of seeing that they were in proper condition.

Notice to be served. No action for recovery of compensation for

injury or death under this article shall be maintained unless notice of

the time, place and cause of the injury is given to the employer within

one hundred and twenty days and the action is commenced within one year

after the occurrence of the accident causing the injury or death. The

notice required by this section shall be in writing and signed by the

person injured or by some one in his behalf, but if from physical or

mental incapacity it is impossible for the person injured to give notice

within the time provided in this section, he may give the same within

ten days after such incapacity is removed. In case of his death without

having given such notice, his executor or administrator may give such

notice within sixty days after his appointment, but no notice under the

provisions of this section shall be deemed to be invalid or insufficient

solely by reason of any inaccuracy in stating the time, place or cause

of the injury if it be shown that there was no intention to mislead and

that the party entitled to notice was not in fact misled thereby. If

such notice does not apprise the employer of the time, place or cause of

injury, he may, within eight days after service thereof, serve upon the

sender a written demand for a further notice, which demand must specify

the particular in which the first notice is claimed to be defective, and

a failure by the employer to make such demand as herein provided shall

be a waiver of all defects that the notice may contain. After service of

such demand as herein provided, the sender of such notice may at anytime

within eight days thereafter serve an amended notice which shall

supersede such first notice and have the same effect as an original

notice hereunder. The notice required by this section shall be served on

the employer, or if there is more than one employer, upon one of such

employers, and may be served by delivering the same to or at the

residence or place of business of the person on whom it is to be served.

The notice or demand may be served by post by letter addressed to the

person on whom it is to be served, at his last known place of residence

or place of business, and if served by post shall be deemed to have been

served at the time when the letter containing the same would be

delivered in the ordinary course of the post. When the employer is a

corporation, notice shall be served by delivering the same or by sending

it by post addressed to the office or principal place of business of

such corporation.

Assumption of risks; contributory negligence, when a question of

fact. An employee by entering upon or continuing in the service of the

employer shall be presumed to have assented to the necessary risks of

the occupation or employment and no others. The necessary risks of the

occupation or employment shall, in all cases arising after the first day

of September, nineteen hundred and ten, be considered as including those

risks, and those only, inherent in the nature of the business which

remain after the employer has exercised due care in providing for the

safety of his employees, and has complied with the laws affecting or

regulating such business or occupation for the greater safety of such

employees. In an action brought to recover damages for personal injuries

or for death resulting therefrom received after the first day of

September, nineteen hundred and ten, owing to any cause, including open

and visible defects, for which the employer would be liable but for the

hitherto available defense of assumption of risks by the employee, the

fact that the employee continued in the service of the employer in the

same place and course of employment after the discovery by such

employee, or after he had been informed of the danger of personal injury

therefrom, shall not be, as matter of fact or as matter of law, an

assumption of the risk of injury therefrom, but an employee, or his

legal representative, shall not be entitled under this article to any

right of compensation or remedy against the employer in any case where

such employee knew of the defect or negligence which caused the injury

and failed, within a reasonable time, to give, or cause to be given,

information thereof to the employer, or to some person superior to

himself in the service of the employer, or who had intrusted to him some

superintendence, unless it shall appear on the trial that such defect or

negligence was known to such employer, or superior person, prior to such

injuries to the employee; or unless such defect could have been

discovered by such employer by reasonable and proper care, tests or

inspection.

Trial; burden of proof. On the trial of any action brought by an

employee or his personal representative to recover damages for

negligence arising out of and in the course of such employment,

contributory negligence of the injured employee shall be a defense to be

so pleaded and proved by the defendant.

Defense; insurance fund. An employer who shall have contributed

to an insurance fund created and maintained for the mutual purpose of

indemnifying an employee for personal injuries, for which compensation

may be recovered under this article, or to any relief society or benefit

fund created under the laws of this state, may prove in mitigation of

damages recoverable by an employee under this article such proportion of

the pecuniary benefit which has been received by such employee from such

fund or society on account of such contribution of the employer, as the

contribution of such employer to such fund or society bears to the whole

contribution thereto.

Existing rights of action continued. Every right of action

existing on the seventeenth day of February, nineteen hundred and nine,

for negligence or to recover damages for injuries resulting in death is

continued and nothing in this article contained shall be construed as

limiting any such right of action, nor shall the failure to give the

notice provided for in section three of this article be a bar to the

maintenance of a suit upon any such existing right of action.

Consent by employer and employee to compensation plan. When and

if any employer in this state and any of his employees shall consent to

the compensation plan described in sections nine to fifteen, inclusive,

of this article, hereinafter referred to as the plan, and shall signify

their consent thereto in writing, signed by each of them or their

authorized agents, and acknowledged in the manner prescribed by law for

taking the acknowledgment of a conveyance of real property, and such

writing is filed with the county clerk of the county in which it is

signed by the employee, then so long as such consent has not expired or

been canceled as hereinafter provided, such employee, or in case injury

to him results in death, his executor or administrator, shall have no

other right of action against the employer for personal injury or death

of any kind, under any statute or at common law, save under the plan so

consented to, except where personal injury to the employee is caused in

whole or in part by the failure of the employer to obey a valid order

made by the industrial commission or other public authority authorized

to require the employer to safeguard his employees, or where such injury

is caused by the serious or willful misconduct of the employer. In such

excepted cases thus described, no right of action which the employee has

at common law or by any other statute shall be affected or lost by his

consent to the plan, if such employee, or in case of death his executor

or administrator, commences such action before accepting any benefit

under such plan or giving any notice of injury as provided in section

nine hereof. The commencing of any legal action whatsoever at common law

or by any statute against the employer on account of such injury, except

under the plan, shall bar the employee, and in the event of his death

his executors, administrators, dependents and other beneficiaries, from

all benefit under the plan. This section and sections nine to fifteen,

inclusive, of this article shall not apply to a railroad corporation,

foreign or domestic, doing business in this state, or a receiver

thereof, or to any person employed by such corporation or receiver.

Liability to pay compensation; notice of accident. If personal

injury by accident arising out of and in the course of the employment is

caused to the employee, the employer shall, subject as hereinafter

mentioned, be liable to pay compensation under the plan at the rates set

out in section ten of this article: provided that the employer shall not

be liable in respect of any injury which does not disable the employee

for a period of at least two weeks from earning full wages at the work

at which he was employed, and that the employer shall not be liable in

respect of any injury to the employee which is caused by the serious and

willful misconduct of that employee. No proceedings for recovery under

the plan provided hereby shall be maintained unless notice of the

accident has been given to the employer as soon as practicable after the

happening thereof and before the employee has voluntarily left the

employment in which he was injured and during such disability, and

unless claim for compensation with respect to the accident has been made

within six months from the occurrence of the accident, or in the case of

death of the employee, or in the event of his physical or mental

incapacity within six months after such death or removal of such

physical or mental incapacity, or in event that weekly payments have

been made under the plan, within six months after such payments have

ceased; but no want of or defect or inaccuracy of a notice shall be a

bar to the maintenance of proceedings under the plan unless the employer

proves that he is prejudiced by said want, defect or inaccuracy. Notice

of the accident shall apprise the employer of the claim for compensation

under this plan and shall state the name and address of the employee

injured, the date and place of the accident and in simple language the

cause thereof. The notice may be served personally or by sending it by

mail in a registered letter addressed to the employer at his last known

residence or place of business.

Amount of compensation; persons entitled; physical examination.

The amount of compensation under the plan shall be: 1. In case death

results from injury:

(a) If the employee leaves a widow or next of kin at the time of his

death wholly dependent on his earnings, a sum equal to twelve hundred

times the daily earnings of the employee at the rate at which he was

being paid by the employer at the time of the accident, but not more in

any event than three thousand dollars. Any weekly payments previously

made under the plan shall be deducted in ascertaining such amount

payable on death.

(b) If such widow or next of kin or any of them are in part only

dependent upon his earnings, such sum not exceeding that provided in

subdivision a as may be determined to be reasonable and proportionate to

the injury to such dependents.

(c) If he leaves no widow, or next of kin so dependent in whole or in

part, the reasonable expenses of his medical attendance and burial, not

exceeding one hundred dollars. Whatever sum may be determined to be

payable under the plan, in case of death of the injured employee, shall

be paid to his legal representative for the benefit of such dependents,

or if he leaves no such dependents, for the benefit of the person to

whom the expenses of medical attendance and burial are due.

2. Where total or partial incapacity for work at any gainful

employment results to the employee from the injury, a weekly payment

commencing at the end of the second week after the injury and continuing

during incapacity, subject as herein provided, not exceeding fifty per

centum of his average weekly earnings when at work on full time during

the preceding year during which he shall have been in the employment of

the same employer, or if he shall have been employed less than a year,

then a weekly payment of not exceeding three times the average daily

earnings on full time for such less period.

In fixing the amount of the weekly payment, regard shall be had to any

payment, allowance or benefit which the workman may have received from

the employer during the period of his incapacity, and in the case of

partial incapacity the weekly payment shall in no case exceed the

difference between the amount of the average weekly earnings of the

workman before the accident and the average amount which he is earning

or is able to earn in some suitable employment or business after the

accident, but shall amount to one-half of such difference. In no event

shall any weekly payment payable under the plan exceed ten dollars per

week or extend over more than eight years from the date of the accident.

Any person entitled to receive weekly payments under the plan is

required, if requested by the employer, to submit himself for

examination by a duly qualified medical practitioner or surgeon provided

and paid for by the employer, at a time and place reasonably convenient

for the employee, within three weeks after the injury, and thereafter at

intervals not oftener than once in six weeks. If the workman refuses so

to submit, or obstructs the same, his right to weekly payments shall be

suspended until such examination shall have taken place, and no

compensation shall be payable under the plan during such period. In case

an injured employee shall be mentally incompetent at the time when any

right or privilege accrues to him under the plan, a committee or

guardian of the incompetent, appointed pursuant to law, may, on behalf

of such incompetent, claim and exercise any such right or privilege with

the same force and effect as if the employee himself had been competent

and had claimed or exercised any such right or privilege; and no

limitation of time herein provided for shall run so long as said

incompetent employee has no committee or guardian. In case an injured

employee shall be under a substantial impairment within the meaning of

the conservatorship provisions of article seventy-seven of the mental

hygiene law at the time when any property right accrues to him under the

plan, a conservator, appointed pursuant to law, may, on behalf of such

conservatee, claim and exercise any property right with the same force

and effect as if the employee had been capable of managing his affairs

and had claimed such right; and no limitation of time herein provided

shall run so long as said employee has no conservator.

Settlement of disputes. Any question of law or fact arising in

regard to the application of the plan in determining the compensation

payable thereunder or otherwise shall be determined either by agreement

or by arbitration, or by an action at law as herein provided. In case

the employer shall be in default in any of his obligations to the

employee under the plan, the injured employee or his committee,

conservator or guardian, if such be appointed, or his executor or

administrator, may then bring an action to recover compensation under

the plan in any court having jurisdiction thereof as on a written

contract. Such action shall be conducted in the same manner as an action

at law for the recovery of damages for breach of a written contract, and

shall for all purposes, including the determination of jurisdiction, be

deemed such an action. The judgment in such action, in favor of the

plaintiff, shall be for a lump sum equal to the amount of the payments

then due and prospectively due under the plan. In such action by an

executor or administrator the judgment may provide the proportions of

the award or the costs to be distributed to or between the several

dependents. If such determination is not made it shall be determined by

the surrogate's court by which such executor or administrator is

appointed, in accordance with the terms of this article on petition of

any party on such notice as such court may direct.

Preferential claim; not assignable or subject to attachment;

attorney's fees. Any person entitled to weekly payments under the plan

against any employer shall have the same preferential claim therefor

against the assets of the employer as now allowed by law for a claim by

such person against such employer for unpaid wages or personal services.

Weekly payments due under the plan shall not be assignable or subject to

attachment, levy or execution. No claim of an attorney for any

contingent interest in any recovery under the plan for services in

securing such recovery shall be an enforceable lien thereon, unless the

amount of the same be approved in writing by a justice of the supreme

court, or in case the same is tried in any court, before the justice

presiding at such trial.

Cancellation of consent. When a consent to the plan shall have

been filed in the office of the county clerk as herein provided, it

shall be binding upon both parties thereto as long as the relation of

employer and employee exists between the parties, and expire at the end

of such employment, but it may at any time be canceled on sixty days'

notice in writing from either party to the other. Such notice of

cancellation shall be effective only if served personally or sent by

registered letter to the last known post-office address of the party to

whom it is addressed, but no notice of cancellation shall be effective

as to a claim for injury occurring previous thereto.

Reports of compensation plan. Each employer who shall sign with

any employee a consent to the plan shall, within thirty days thereafter,

file with the industrial commission a statement thereof, signed by such

employer, which shall show (a) the name of the employer and his

post-office address, (b) the name of the employee and his last known

post-office address, (c) the date of, and office where the original

consent is filed, (d) the weekly wage of the employee at the time the

consent is signed; unless such statement is duly filed, such consent of

the employee shall not be a bar to any proceeding at law commenced by

the employee against the employer.

Reports by employer. Each employer of labor in this state who

shall have entered into the plan with any employee shall, on or before

the first day of January, nineteen hundred and eleven, and thereafter

and at such times as may be required by the industrial commission, make

a report to such commission of all amounts, if any, paid by him under

such plan to injured employees, stating the name of such employees, and

showing separately the amounts paid under agreement with the employees,

and the amounts paid after proceedings at law, and the proceedings at

law under the plan then pending. Such reports shall be verified by the

employer or a duly authorized agent in the same manner as affidavits.

Laws repealed. Of the laws enumerated in the schedule hereto

annexed, that portion specified in the last column is hereby repealed.

Construction. The provisions of this chapter shall be construed

as a continuation of the provisions of sections two hundred to two

hundred and four of chapter thirty-six of the laws of nineteen hundred

and nine, as amended by chapter three hundred and fifty-two of the laws

of nineteen hundred and ten, and not as a new enactment, and nothing

contained in this chapter shall apply to employers or employees in

hazardous occupations as such occupations are defined by the workmen's

compensation law.

This act shall take effect immediately.