The Business Council opposes this legislation, which would add Section 214-h to the Civil Practice Law and Rules (CPLR) with respect to an action to recover damages for injury to property by public water supplier. For several reasons, this legislation is excessively broad and patently unfair to parties who are not responsible for the injury but nonetheless could end up bearing the costs of additional litigation. This legislation will, without a doubt, increase litigation while failing to address issues underlying the environmental hazard.
A public water system already has three years to bring a suit for damage to its property (plant, equipment or wellfields) caused by a new spill under CPLR 214(4), and for injury to property caused by the latent effects of exposure to any substance, and already has three years from the date when through the exercise of reasonable diligence such injury should have been discovered by the public water system pursuant to CPLR 214-c(2).
Moreover, even where the public water system knows that it has been damaged/injured but cannot determine just who did it, the public water system has five years to find out who caused it and can then sue them any time within one year of discovery of the cause under CPLR 214-c(4).
The legislation provides a new overly broad definition of "contaminant," meaning any physical, chemical, microbiological or radiological substance or matter in water. This definition, which includes sand, dirt, rust, salt, etc., implies that a water system can sue for their presence.
The definition of “public water supplier” is very broad, and does not conform to Public Health Law 1112(2)(c), which provides that a “covered public water system” shall mean: (i) a public water system that serves at least five service connections used by year-round residents or regularly serves at least twenty-five year-round residents; or (ii) a public water system that regularly serves at least twenty-five of the same people, four hours or more per day, for four or more days per week, for twenty-six or more weeks per year. There are other definitional issues contained in the legislation.
Unlimited Statute of Limitations
Section 2 of the legislation would allow an action to recover damages for injury to property owned, managed or operated by a public water supplier or a wholesale water supplier resulting from the presence of a contaminant in a source of water supply three years from “the date the contaminant is last detected.” This provision would allow a law suit within three years of the last detection of the contaminant in the raw water. A water system could give itself an unlimited statute of limitations by controlling the pace of the mitigation/remedial work.
There is also a problem with the second provision (b) because there is a double jeopardy aspect. If a water system has frittered away its time to sue through indolence or negligence, an intervening act of an unrelated person [who introduces an emulsifier (soap) into a groundwater plume causing the contaminants to spread and therefore substantially contribute to the presence of contamination in a water supply] can thereby make some other person liable again.
Statutes of Limitations
Current statutes of limitations improve the accuracy of fact-finding and provide some measure of repose for defendants. The delay in commencing actions for personal injuries associated with site contamination allowed under the proposed legislation would impair the ability of site owners and other defendants to defend them because key witnesses, documents and other evidence will no longer be available.
Under this provision of the bill, a plaintiff may have full knowledge of their injury and its underlying cause for years and choose not to file a lawsuit. Statutes of limitation are designed to ensure that plaintiffs with valid causes of action diligently pursue those causes of action.
Further, statutes of limitation prevent stale claims where a defendant may no longer have exonerating evidence. The bill as written would allow a cause of action to be brought many years after a plaintiff discovers the cause of the underlying injury. Defense of such a lawsuit would be completely impracticable for potential defendants.
As demonstrated above, this legislation is technically flawed, excessively broad, and patently unfair. While the current legislation contains numerous provisions that the Business Council has concerns with, there could be unique circumstance that warrant a greater consideration of the current statute of limitations, but this does not justify the proposed legislation.
For all of these reasons, The Business Council opposes this legislation.