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Scaffold Law Drives Up Costs With Overreach on Liability

By Frank Parlato

OSHA regulations impose numerous safety measures that earlier workers (see photos above) did not enjoy.

There is a strong push these days from various professions, including members of the Business Council, the Lawsuit Reform Alliance of New York, and the Associated General Contractors of America, to persuade Gov. Andrew Cuomo and State Legislators to reform the 127-year-old Labor Law Section 240, commonly known as the Scaffold Law.

The law provides that all owners and contractors shall furnish scaffolds, hoists, ladders, etc., which are to be constructed, placed, and operated so as to give proper protection to workers.

It also provides – uniquely to New York - that the owner or contractor is 100 percent financially liable for almost any type of “gravity-related” injury, regardless of whether or not the employee might be largely at fault. This is what they are hoping to change, so that an employee who is drunk, for instance, will not be able to hold the employer completely liable.

In other states, workers who are injured may not sue their employers for their injuries and are limited to recovering the amount provided by the state's worker's compensation statutes. In New York, the Scaffold Law permits an old-time exception– providing for lawsuits against contractors and owners of the property, even if the accident wasn’t their fault, even if there were no violations of OSHA or local building and safety codes.

So they gather today – opponents of the antiquated law - at the State Capitol in Albany to discuss how it drives up the cost of construction in New York and how to reform the more than 150-year old law that has been on the books long before the creation of the Occupational Safety and Health Administration. With OSHA, the federal agency in charge of establishing and enforcing safety rules at job sites, and the advent of workers’ compensation and disability insurance laws covering medical bills and lost wages of injured workers, proponents of reform say the law has outlived its purpose.

Today, New York State stands alone; the only state with a Scaffold law to exempt workers in “gravity-related” injuries from personal responsibility from their mistakes, errors or negligence. This has provided a field day for lawyers to find new and creative ways to sue in any case that involves a spill - even if someone falls off a box of drywall where he should not have been standing in the first place.

It is said to be one of the main reasons contractors in this population-dwindling, taxpayer-fleecing state pay the highest rates in America for workers compensation and related construction insurance. In fact, according to Michael Elmendorf of the General Contractors Association, New York contractors pay an extra 30 percent for their liability insurance in large part because of this old law.

State Assemblyman Robin Schimminger (D.-Tonawanda), said the scaffold law “drives up the cost of building anything in New York, from a home remodeling project to a Tappan Zee Bridge.” The latter was estimated to cost taxpayers $100 million more because of the Scaffold Law.

Advocates of reform point to some egregious cases such as Kin vs. State of New York: The plaintiff, Summer Kin climbed a ladder to access a scaffold suspended under a bridge. Kin chose to use the top half of an extension ladder, rather than the appropriate bottom half that has rubber feet to keep it stable. The extension ladder slipped. Kin fell and was injured. She testified she had access to the bottom half, but chose the half without safety footings because it was easier to get to.

In other states, Kin’s negligence would have a bearing on the amount of money she got.

In New York, the Scaffold Law assigns total liability to the defendants (in Kin’s case, the taxpayers of New York), even though she was largely responsible for her own fall.

Judge Robert Smith wrote, in effect, an explanation, in another 2012 Court of Appeals case, Dahar vs. Holland Ladder: “As we have long held, [the Scaffold Law] imposes liability even on contractors and owners who had nothing to do with the plaintiff’s accident; and where a violation of the statute has caused injury, any fault by the plaintiff contributing to that injury is irrelevant.”

Assembly Majority Leader Joseph Morelle and Senator Patrick Gallivan have sponsored a bill to reform, but not repeal, the law. They want to apportion awards based on the liability of the worker and the owner. If, for instance, the employer was 25 percent responsible, the employer pays 25 percent of damages. This is the standard that applies to all other areas of New York’s legal system except the Scaffold Law.

Naturally, insurance companies and construction companies are supporting the reform.

Also, quite naturally, trial lawyers and labor unions are opposed to changes in the law.

It should be noted that not just contractors and property owners are affected by the law. The largest Scaffold Law case in 2012 was against a school; one of the largest Scaffold Law cases in recent years was against a municipality. A court ruled recently that the Rochester school system was fully liable for a worker’s injury, even though it appears the injured worker climbed outside of a scaffold against the instructions of a supervisor.

Reform of the Scaffold Law will save insurance companies, construction company owners, taxpayers and consumers. It will make construction in New York State more similar to the other 49 states in America. However, it will adversely affect some lawyers whose very living is dependent on the Scaffold Law and its unique place in American law.



Niagara Falls Reporter - Publisher Frank Parlato Jr. www.niagarafallsreporter.com

Feb 12 , 2013