Changes to the NY Labor Law 240, commonly referred to as the Scaffold Law, died when the 2013 legislative session ended on Friday June 21st. Earlier that week, State Assembly Speaker Sheldon Silver killed the proposed changes when he announced on Tuesday through his spokesman, Michael Whyland, that, “Changes to the Scaffold Law are not being considered. We don’t think it’s the right policy to further burden injured workers.” New York is the only remaining state in the country with a Scaffold Law in the books ever since Illinois repealed their Scaffold Law in 1995.
NY Labor Law 240(1), which was enacted in 1885, states in part that, “All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”
Proponents for reforming or repealing the current Scaffold Law state that the law holds owners, contractors, developers and subcontractors absolutely liable for injuries regardless of worker negligence. In a 2012 Court of Appeals decision, Judge Smith wrote in his summary opinion, “Labor Law 240(1), one of the most frequent sources of litigation in the New York courts, provides rights to certain workers going well beyond the common law. As we have long held, it 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.”
According to the summary of provisions for SB.111 it, “Amends the Civil Practice Law and Rules to add a new Section 1414. This section applies a comparative negligence standard as provided for in CPLR 1411 with respect to actions for personal injury, property damage or wrongful death arising under Labor Law Sections 240 and 241 to the extent the conduct relates to the following: a criminal act, use of drugs or alcohol, failure of the employee to use safety devices furnished at the job site, failure to comply with employer instructions regarding the use of safety devices at the job site, or failure of the employee to comply with safe work practices in accord with safety training programs provided by the employer.”
Both SB.111 and AB.3104 would have allowed juries hearing personal injury suits related to the Scaffold Law to take into account the workers actions in regards to personal negligence. So basically if a worker shows up to work drunk or refuses to wear fall protection while performing their duties and gets injured their actions can be considered by jurors when reaching a verdict.
Those who support changes to the Scaffold Law claim that it will create job growth, lower liability insurance costs and save taxpayers nearly $1 billion a year on public works projects. They also argue that the current law doesn’t result in safer jobsites and that workers are allowed to receive huge payouts due to their own negligence.
The parties against reforming the current Scaffold Law feel that the proposed changes would make jobsites more dangerous and place undue burdens on workers who are injured. They state that adequate protection for workers would be diminished and that the greed-fueled changes are all about saving money. Some also feel that Assembly Speaker Sheldon Silver may have had ulterior motives when he killed the legislation since he is employed by a personal injury law firm.
Even though the proposed legislation was defeated the debate rages on as it has for the past several years and tort reform regarding the Scaffold Law will continue to be brought up in the future as it has in the past. But is it the right debate to be having? The focus from both sides of the argument is on who’s at fault once an injury occurs. Shouldn’t the emphasis be on enforcement to prevent more accidents and ensuring that jobsites are as safe as possible to begin with? Safety at the construction site should be a shared responsibility among all parties involved from owners and developers to contractors and subcontractor and to every worker at the jobsite. Everyone involved in a construction project should have safety as their number one priority and do everything in their power to ensure the site is as accident and incident free as possible.