N.Y. Environmental Conservation Law § 27-1321: Protection against liability

§ 27-1321. Protection against liability.

1. Notwithstanding any other provision of law to the contrary, any

person who is, by professional training or experience and attainment,

qualified to analyze and interpret matters pertaining to the treatment,

storage, disposal, or transport of hazardous materials or hazardous

wastes, and who voluntarily and without expectation of monetary

compensation provides assistance or advice in mitigating the effects of

an accidental or threatened discharge of any hazardous materials or

hazardous wastes, or in preventing, cleaning up, or disposing of any

such discharge, shall not be subject to a penalty or to civil liability

for damages or injuries alleged to have been sustained by any person or

entity by reason of an act or omission in the giving of such assistance

or advice. For the purposes of this section, the term "hazardous

materials" shall have the same meaning as that term is defined in

regulations promulgated by the commissioner of transportation pursuant

to section fourteen-f of the transportation law, and the term "hazardous

wastes" shall mean those wastes identified or listed pursuant to section

27-0903 of this article and any rules and regulations promulgated

thereunder.

2. Nothing in subdivision one of this section shall be deemed or

construed to relieve from liability for damages or injuries any person

who: (a) is alleged to have caused said damages or injuries as the

result of gross negligence, or reckless, wanton or intentional

misconduct, or (b) is under a legal duty to respond to the incident, or

(c) receives compensation other than reimbursement for out-of-pocket

expenses for services in rendering assistance or advice.

3. Notwithstanding any other provision of law to the contrary, the

liability of any person designing, implementing or otherwise performing

services related to an inactive hazardous waste disposal site remedial

program or related to cleanup or restorative work which is conducted

pursuant to a contract with the department or pursuant to an order of

the department, the department of health or a court, for any injury to a

person or property caused by or related to such services shall be

limited to acts or omissions of the person during the course of

performing such services which are shown to have been the result of

negligence, gross negligence or reckless, wanton or intentional

misconduct. Notwithstanding any other provision of law, when (i) a

verdict or decision in an action or claim for injury to a person or

property caused by or related to such services is determined in favor of

a claimant in an action involving a person performing such services and

any other person or persons jointly liable, and (ii) the liability of

the person performing such services is found to be fifty percent or less

of the total liability assigned to all persons liable, and (iii) the

liability of the person performing such services is not based on a

finding of reckless disregard for the safety of others, or intentional

misconduct, then the liability of the person performing such services to

the claimant for loss relating to injury to property and for

non-economic loss relating to injury to a person shall not exceed the

equitable share of the person performing such services determined in

accordance with the relative culpability of each person causing or

contributing to the total liability for such losses; provided, however,

that the culpable conduct of any person not a party to the action shall

not be considered in determining any equitable share herein if the

claimant proves that with due diligence the claimant was unable to

obtain jurisdiction over such person in said action. As used in this

section, the term "non-economic loss" includes but is not limited to

pain and suffering, mental anguish, loss of consortium or other damages

for non-economic loss. However, nothing in this subdivision shall be

deemed to alter, modify or abrogate the liability of any person

performing such services for breach of any express warranty, limited or

otherwise, or an express or implied warranty under the uniform

commercial code, or to an employee of such person pursuant to the

workers' compensation law, or relieve from liability, including

liability for the costs of cleanup, the owner or any person who is a

person responsible for the disposal of hazardous wastes at the site,

pursuant to section 27-1313 of this article.