If an intoxicated worker who shuns a safety harness slips and falls 50 feet from a scaffold and breaks his neck, is the employer responsible?
Absolutely, says the State of New York—a unique legal distinction that employers, contractors and property owners in that state are now trying to change.
The groups have joined forces to modify the state’s century-old Scaffold Law, which holds them automatically and absolutely liable for any elevation-related (or “gravity-related”) injury on a construction site.
Block O’Toole & Murphy
|When a two-point suspension scaffold attachment point failed on a 110-foot water tank, two painters who were not tied off fell to their deaths. OSHA held the employer responsible.|
That liability includes both worker falls from heights and injuries from falling objects.
Business, Contractor Coalition
New York is the last state in the nation whose civil law does not consider a worker’s conduct in assessing damages in such cases, according to the Lawsuit Reform Alliance of New York, which has taken on the cause on behalf of the new Scaffold Law Reform coalition.
The coalition’s members include:
• Associated General Contractors of New York State;
• Business Council of New York State;
• New York Farm Bureau;
• National Federation of Independent Business;
• Unshackle Upstate; and
• The New York State Builders Association.
‘Outdated and Biased’
“The Scaffold Law is ‘Exhibit A’ of our outdated and biased legal system,” said Tom Stebbins, executive director of the alliance. “Reforming the Scaffold Law will be a first step to getting our economy moving again and sending a message that much-needed change has reached New York State.”
The coalition is pushing for passage of Assembly Bill 2835-2011, which would give the state’s commercial property owners, business owners, contractors and municipalities (homeowners are already exempt) the chance to defend themselves in court when an injury occurs due to negligence.
The bill would not prevent injured workers from suing their employers or prevent injured workers from receiving workers’ compensation benefits.
It does say, however, that in “any action or proceeding to recover damages” for injury or property damage, if the worker did not use provided safety equipment, comply with provided training, or was impaired by alcohol or drugs, “the conduct attributable to such person shall not bar recovery, but the amount of damages otherwise recoverable” may take that conduct into consideration.
“Illinois was the last to reform the law, in 1995, and the effect was immediate: 50,000 new jobs and a sharp decrease in workplace injuries,” the coalition said in a statement. “By reforming the law, workplace safety will be improved.”
All New Yorkers bear the costs of the current Scaffold Law, the coalition says.
“Since there is virtually no defense against a million-dollar Scaffold Law suit, the cost of general liability insurance in New York is extremely high, driving up costs for all construction projects, including taxpayer-funded projects like infrastructure improvements and school construction,” the group says.
“This has a significant impact on New York: Construction costs go up, employers hire fewer workers (or must lay off those they do have), and the economy suffers.”
Ensuring Worker Safety
Trial lawyers oppose changes in the Scaffold Law (Labor Law Section 240), saying the current statute “is built upon the understanding that mistakes cannot be tolerated.”
In a 2009 article, the Keogh Crispi personal-injury law firm called efforts to change the law “nothing more than [an] attempt to avoid a contractual obligation to monitor and reduce hazardous risk.”
“When an insurance company issues a policy and collects enormous sums of money from businesses, they do so on the promise that they will undertake the necessary efforts [to] ensure the safety of construction workers and construction sites,” the article said.
Commercial property owners and general contractors “are under a duty to exercise care so that workers have proper protection,” the firm wrote. “Section 240 places the burden of ensuring worker safety on those who have the power to control the conditions of the worksite.”
The firm also cites “a temptation” on construction sites “to cut safety corners in the interest of speed.”
“Superintendents routinely ask construction workers to perform work without taking the time to properly secure equipment or without hiring an engineer to determine the necessary safety precautions,” the article says.
“Compounding this problem is the fact that the balance of power on a construction site often dictates that those who are asked to take unreasonable risks will do so, regardless of the safety hazards. If one worker refuses, another will often step in to take the job and assume the risk. This emphasis on speed places construction workers at serious risk of harm.”
The current scaffold law, it says, “provides a safeguard against profit and greed running amuck.”