§ 27-1321 — Protection against liability

§ 27-1321. Protection against liability.\n 1. Notwithstanding any other provision of law to the contrary, any\nperson who is, by professional training or experience and attainment,\nqualified to analyze and interpret matters pertaining to the treatment,\nstorage, disposal, or transport of hazardous materials or hazardous\nwastes, and who voluntarily and without expectation of monetary\ncompensation provides assistance or advice in mitigating the effects of\nan accidental or threatened discharge of any hazardous materials or\nhazardous wastes, or in preventing, cleaning up, or disposing of any\nsuch discharge, shall not be subject to a penalty or to civil liability\nfor damages or injuries alleged to have been sustained by any person or\nentity by reason of an act or omission in the giving of such assistance\nor advice. For the purposes of this section, the term "hazardous\nmaterials" shall have the same meaning as that term is defined in\nregulations promulgated by the commissioner of transportation pursuant\nto section fourteen-f of the transportation law, and the term "hazardous\nwastes" shall mean those wastes identified or listed pursuant to section\n27-0903 of this article and any rules and regulations promulgated\nthereunder.\n 2. Nothing in subdivision one of this section shall be deemed or\nconstrued to relieve from liability for damages or injuries any person\nwho: (a) is alleged to have caused said damages or injuries as the\nresult of gross negligence, or reckless, wanton or intentional\nmisconduct, or (b) is under a legal duty to respond to the incident, or\n(c) receives compensation other than reimbursement for out-of-pocket\nexpenses for services in rendering assistance or advice.\n 3. Notwithstanding any other provision of law to the contrary, the\nliability of any person designing, implementing or otherwise performing\nservices related to an inactive hazardous waste disposal site remedial\nprogram or related to cleanup or restorative work which is conducted\npursuant to a contract with the department or pursuant to an order of\nthe department, the department of health or a court, for any injury to a\nperson or property caused by or related to such services shall be\nlimited to acts or omissions of the person during the course of\nperforming such services which are shown to have been the result of\nnegligence, gross negligence or reckless, wanton or intentional\nmisconduct. Notwithstanding any other provision of law, when (i) a\nverdict or decision in an action or claim for injury to a person or\nproperty caused by or related to such services is determined in favor of\na claimant in an action involving a person performing such services and\nany other person or persons jointly liable, and (ii) the liability of\nthe person performing such services is found to be fifty percent or less\nof the total liability assigned to all persons liable, and (iii) the\nliability of the person performing such services is not based on a\nfinding of reckless disregard for the safety of others, or intentional\nmisconduct, then the liability of the person performing such services to\nthe claimant for loss relating to injury to property and for\nnon-economic loss relating to injury to a person shall not exceed the\nequitable share of the person performing such services determined in\naccordance with the relative culpability of each person causing or\ncontributing to the total liability for such losses; provided, however,\nthat the culpable conduct of any person not a party to the action shall\nnot be considered in determining any equitable share herein if the\nclaimant proves that with due diligence the claimant was unable to\nobtain jurisdiction over such person in said action. As used in this\nsection, the term "non-economic loss" includes but is not limited to\npain and suffering, mental anguish, loss of consortium or other damages\nfor non-economic loss. However, nothing in this subdivision shall be\ndeemed to alter, modify or abrogate the liability of any person\nperforming such services for breach of any express warranty, limited or\notherwise, or an express or implied warranty under the uniform\ncommercial code, or to an employee of such person pursuant to the\nworkers' compensation law, or relieve from liability, including\nliability for the costs of cleanup, the owner or any person who is a\nperson responsible for the disposal of hazardous wastes at the site,\npursuant to section 27-1313 of this article.\n