Battle in the Skyscrapers

The Business Council of Westchester (BCW) and the NY State Trial Lawyers Association are among the powerful lobbying groups that face off in Albany this year over NY Labor Law 240, otherwise known as the Scaffold Law, originally passed in 1885 to protect workers who perform tasks in high places. One side contends the 19th-century law destroys contractor and developer profits and hurts the state’s economy, while the other believes it saves lives. 

Both are probably correct.

Simply put, the Scaffold Law requires employers on building sites to provide a safe working environment for laborers working at heights. Case law has defined that liability as also applying to building owners who employ the contractors, as well as to just about any sort of “gravity-related” accident, such as a tool falling on someone below. About 10 years ago, according to broker Ken Fuirst, co-owner of Levitt-Fuirst Insurance in Tarrytown, the number of claims and lawsuits under the law exploded. 

“It’s a loophole some lawyers have exploited to benefit themselves,” says Fuirst, whose firm specializes in construction insurance. “We handle some of the biggest contractors in New York, and their premiums have quadrupled since the Scaffold Law has been exploited in the last 10 years.” 

Insurance rates are largely driven by claims paid and, according to New York Law Journal, 14 of the 30 largest settlements in 2012 were for cases that involved falls from ladders or scaffolding. Awards ranged from $3 million to $15 million.

The Scaffold Safety Coalition says Fuirst’s conclusion is faulty because New York insurance costs are high across all categories of construction — including those where the Scaffold Law doesn’t apply, like road construction and paving. 

While insurance-claims data are proprietary, job-related injury rates are published. Of 42 states where injury data is available from the US Bureau of Labor Statistics, New York’s nonfatal injury rate (4.58 per 100 construction workers) is better than 36 of them for 2000-2011. Statewide, there were 45 fatal construction deaths in 2014, not all of which were fall-related. New York is the only state with a law this stringent, so defenders of the Scaffold Law point to the data as proving its effectiveness in protecting workers.

“This is not about people profiting,” says Anthony Pirrotti Jr., president of the Westchester affiliate of the NYS Trial Lawyers Association. “It is about people who are injured getting fair and reasonable compensation.” When someone is paralyzed due to a construction accident where the fault, according to the Scaffold Law, is on the contractor for failing to provide proper safety equipment, “Someone’s got to pay for that,” Pirrotti says. “Should that person have to be on Medicaid, so the public pays instead of the contractor who is at fault? Are they supposed to go into subsidized housing because they can’t afford to live as they did before?”

The largest issue with the current law is “absolute liability,” which provides that any negligent action by the injured worker, such as failure to use safety equipment or being at the job site inebriated, is virtually irrelevant in court. “Essentially, the injury itself proves the job site is unsafe,” says Tom Stebbins, executive director of the Lawsuit Reform Alliance of NY, the nonprofit organization lobbying with the BCW.  

Pirrotti contends that the law contains defenses for the contractor in the form of “sole proximate cause” and “recalcitrant worker” defenses. If an inebriated worker is injured on a job site and sues for damages, Pirotti says, “The sole proximate cause defense would totally obliterate that person’s right to recovery.” The same would hold true if a “recalcitrant worker” refused to use safety equipment the contractor provided.

BCW executive vice president  and COO John Ravitz says of the absolute liability factor: “We’re not looking to repeal Labor Law 240. We just want to reform one section.”  Stebbins explains: “We’re looking for comparative negligence. We want to keep the law as it is, but add: ‘Nothing in the law shall absolve the plaintiff of culpability for his own injury.’”

As expected, Pirrotti opposes that change. “If you put comparative negligence into the law,” he says, “you are shifting the burden and putting it back on the worker, who is going to be forced to work in an unsafe manner.”

Fuirst is against comparative negligence for a different reason: “Changing the law to allow degrees of liability will just bring in more legal fighting.” The workers’ compensation system, he says, already protects workers: “If an employee gets injured, he or she should be compensated through workers’ compensation, end of story.”