New York’s antiquated Labor Law Sections 240 and 241 — the statutes that often unfairly impose absolute liability on owners and general contractors in accidents involving falls on a construction site — have long been the source of immense legal and financial strain for contractors, developers, insurers, municipalities, school districts, and others involved in building projects. But the movement to reform the state’s Scaffold Law is coming back to life, thanks to renewed consideration of bills pending in both the Assembly and the Senate. All companies, public entities, and insurers with a stake in construction projects in New York should keep a close eye on this issue and voice their support of this legislation.
Assembly Bill A2835-2011 and Senate Bill S6816-2011 would amend Labor Law Sections 240 and 241 to permit a jury to consider the injured worker’s comparative negligence where safety equipment or other devices have been made available. This would mark a fundamental shift from the current standard of absolute liability to a standard of comparative negligence that apportions liability more fairly among all parties in cases where the worker’s recalcitrant conduct (such as failing to follow safety instructions or utilize safety equipment, being impaired by the use of drugs or alcohol, etc.) is a proximate cause of the injury.
Such a change would provide a significant benefit to the construction and insurance industries in New York, as well as entities such as municipalities and school districts involved in public building projects, because it would allow them to put forth a stronger defense against claims from recalcitrant workers and it would contribute to a reduction in insurance rates.
The original purpose of the 130-year-old law was to protect workers building skyscrapers before the existence of workers compensation or social security and when contributory fault meant that the worker could not recover if he was even 1 percent negligent. But since then, the courts have extended the reach of the labor law, which imposes a non-delegable absolute liability on owners and general contractors without regard to actual fault and without any consideration of the actions of the worker, to an extent where today, falling 16 inches qualifies. Falling off an overturned five-gallon bucket qualifies. An object falling a few inches, or merely tipping over and injuring a worker standing at the same level, qualifies. New York is the only state in the nation with such a law.
For additional information, see “Advocates Call for Scaffolding Law Reform,” recently reported by Thomson Reuters, which quotes Goldberg Segalla partner Thomas F. Segalla on the Court of Appeals’ expansion of the scope of the law to allow absolute liability to be applied in more and more cases.