Never before has there been greater traction to reform New York’s well-known scaffolding statute embodied in Labor Law §240(1). This well-intentioned law has evolved over the past two decades into a windfall for a small group of plaintiff’s attorneys, while simultaneously causing construction insurance premiums to skyrocket. By all accounts, these increased insurance costs have limited real estate development in and around New York City, causing major developers to look to other states for development sites.

New York’s scaffolding statute is one of three critical provisions of the Labor Law that regulate an employer’s responsibility to furnish a safe workplace during the construction process. Specifically, owners and general contractors are subject to: a) Labor Law §200, codifying the common law duty to provide employees with a safe workplace; b) Labor Law §240(1), regulating special hazards related to elevation concerns in the construction industry; and c) Labor Law §241(6), imposing liability based on violations of the New York State Industrial Code. Under Section 240′s system of "absolute liability," as long as the plaintiff can establish that the defendants violated the statute in any way, however miniscule, and such violation was a contributing factor to the accident, the defendants will be held liable for the full extent of the plaintiff’s damages.1 As discussed below, this system represents the strictest imposition of liability for elevated construction accidents in the United States.

In an effort to alleviate this burden, lawmakers have introduced an amendment that would allow the jury to consider the plaintiff’s own negligence in apportioning responsibility for the alleged damages.2 The proposed reform does not seek the abolition of strict liability in such circumstances, but would merely eliminate the injustice of a plaintiff recovering for portions of his injury that he himself caused. This reform is sorely needed to appropriately assign liability among and between culpable parties, and to provide relief to an industry crippled by the repressive costs of defending claims for injuries too often caused by the plaintiff’s own culpable conduct.

Those opposed to reforming §240 have been vociferous in advocating their position, often creating misconceptions about the law that should be addressed, (see " Proposed Legislative ‘Reforms’ of Labor Law" by Brian J. Shoot, NYLJ, April 16).3

In response, this article will discuss the legal and practical support for the proposed reform to §240, as well as explore cases in which owners and general contractors have been held absolutely liable under the existing regime, without any regard to the plaintiff’s own negligence.

Those opposing the reform attempt to downplay the burden imposed by the Labor Law. It bares noting, however, that owners and general contractors are not only held to the same general negligence standards as every other member of society, but also bear the additional burden of absolute liability under Labor Law §§240(1) and 241(6).

Ordinarily, in general liability cases, New York employs the "pure comparative negligence" approach, holding each party accountable for its percentage of fault deriving from conduct that contributed to the accident.4 This means that if the fact finder determines that the plaintiff was 60 percent at fault for his accident, he may only recover the remaining 40 percent of damages from the defendants. However, in claims alleging violations of Labor Law §240(1), a plaintiff may recover the full amount of damages from the defendants even if the plaintiff was 99 percent at fault. Supporters of the proposed reform argue that each party should be held accountable for its own actions, in accordance with its degree of comparative fault, as with every other section of the state’s tort law.

Such comparative negligence is not simply limited to a worker’s use of drugs or alcohol as the opposition suggests, though it is true that there are many such instances in which defendants have been held absolutely liable for the full extent of the plaintiff’s injuries despite the plaintiff having a blood alcohol content as high as 0.23 percent (three times the legal limit for driving) at the time of the accident.5 Instead, the proposed reform would also permit the jury to rightfully consider, for example, the plaintiff’s failure to correctly use available safety equipment, follow proper safety procedure and direction, or to comply with accepted industry practices. Incredibly, under the current state of the law, when a violation of Labor Law §240(1) is found, the jury is not even permitted to consider any such conduct by the plaintiff in assigning responsibility.

One particularly disturbing outcome was reached in the case of Silvia v. Bow Tie Partners, where the plaintiff was injured when he fell from a makeshift "scaffold" that he had constructed using a single wooden plank placed between two ladders.6 The evidence demonstrated that Occupational Safety and Health Act (OSHA) compliant scaffolding planks were nearby and available for plaintiff’s use, but the plaintiff instead chose to continue using his makeshift scaffold. Further, when a coworker observed a crack in the planking and instructed the plaintiff to discontinue using it, the plaintiff replied that he did not care. Despite assuming the risk of using his makeshift scaffold instead of approved and available planking, the lower court held that the plaintiff was entitled to summary judgment on liability, placing 100 percent of the damages burden on the defendant.

Plaintiffs have also prevailed in other cases alleging violations of §240 where the evidence established that they were provided with the proper safety equipment, but chose not to use it. For example, in Gaffney v. BFP 300 Madison II, the First Department held that although the plaintiff was provided with a harness, lanyard and tie-off point, his failure to utilize such equipment did not eliminate his ability to recover for injuries he sustained after the collapse of the float scaffold he was using.7 Cases such as Gaffney demonstrate that, under the current system, owners and general contractors remain exposed to absolute liability for elevated construction accidents even when they provide their employees with the proper safety devices.8 Although the defendants in such cases should be held partially at fault for the failure of their scaffolding and other equipment, the proposed reform to §240 would at least allow the jury to consider the plaintiff’s conduct in apportioning responsibility.

Moreover, the application of §240 has been continuously broadened to cover accidents that are not directly related to risks created by elevation concerns. In Reavely v. Yonkers Raceway Management. & Consulting Group, the plaintiff was injured while using a circular saw at a workstation next to an adjacent trench.9 The plaintiff lost his footing while knowingly standing on a waterproofing substance that had yet to dry, severing his thumb with the circular saw in his efforts to regain his balance. The plaintiff alleged that the injury occurred because he reached toward the saw in an attempt to avoid falling into the trench. The court held that this was enough to establish a violation of §240. Consequently, absolute liability was triggered, and the plaintiff’s negligence in using a saw while standing on a known slippery surface was deemed irrelevant. The obvious takeaway here is that plaintiffs will endeavor to allege any cognizable violation of §240, in order to attain the benefits of entitlement to absolute liability, notwithstanding the degree of their comparative fault.

Opponents of the proposed reform further attempt to downplay the severity of Labor Law §240 by averring that New York is not the only jurisdiction that regulates scaffolding. However, no other state in the nation has an "absolute liability" standard for these types of accidents. Statistics demonstrating the translation of stricter liability into real world dollars and cents are readily available to the eager eye. In one study, the insurance costs associated with various trades involving elevated construction in New York City represented at least twice the cost to cover the same activity in other major cities.10 In some instances, these insurance costs have approached the shocking level of 75 percent of payroll ($747.85 spent for every $1,000 of payroll to cover bridge or elevated highway construction in New York City, compared with $250.42 spent in Philadelphia, the closest major city to New York).

Developers have taken notice of this extreme cost disparity. Many private developers are now choosing to take their projects across the Hudson River to New Jersey where insurance costs are nearly half of those in New York. On the public side, if the excessive insurance burden were relieved, the New York City School Construction Authority, which constructs new schools throughout the five boroughs, could instead apply the available funds to the construction of another one to two new schools per year to help alleviate the strain on the already crowded public school system. Of equal concern are the number of insurance companies that will no longer underwrite major development projects in New York City due to the severity of the awards in these types of cases. Those companies that do still offer insurance for such projects must now charge such exorbitant premiums that many projects can no longer progress past the early planning stages.

The proposed reform to §240 would certainly alleviate the staggering costs of insurance associated with these construction efforts, leading to more construction projects and job creation while still preserving an injured worker’s right to seek relief. To further this point, one need only look to the effects of the 1995 scaffolding law reform in Illinois (the last state to employ a strict liability statute similar to New York’s).11 Within five years of the repeal of absolute liability, the number of construction jobs in Illinois rose 25 percent from 211,000 in 1994 to 265,000 in 2000. Interestingly, Illinois also experienced a decreased amount of construction site fatalities, notwithstanding the fact that a greater amount of construction was taking place. Thus, it appears that the elimination of absolute liability may create the incentive for workers to exercise greater caution at the job site, which should not be a point of political contention.

The opposition’s suggestions that the proposed reforms to §240 are unreasonable appear both disingenuous and self-serving. Moreover, these arguments illustrate the plaintiff bar’s overindulgence in the existing system’s affordance of lax standards and minimal barriers to quick recovery, without regard to the often outrageously culpable conduct by plaintiffs. Proponents of the reform simply suggest that each party be held accountable for its own actions, to provide relief to an industry crippled by the exorbitant cost brought on by the unintended consequence of a good law.

Jason L. Beckerman is a member, and Ryan T. Kearney is an associate, of Cozen O’Connor’s commercial litigation department in New York. Vincent P. Pozzuto, a member of the department, also assisted in the preparation of this article.

Endnotes:

1. See Karcz v. Klewin Bldg., 85 A.D.3d 1649, 1651 (4th Dept. 2011).

2. A3104-2013, 1 N Assem., Reg. Sess. (N.Y. 2013), available at http://open.nysenate.gov/legislation/bill/A3104-2013.

3. Brian J. Shoot, Proposed Legislative "Reforms" of Labor Law, NYLJ, April 16, 2013.

4. CPLR §1411 (Consol. 2013).

5. See Sergeant v. Murphy Family Trust, 284 A.D.2d 991, 991 (4th Dept. 2001).

6. 77 A.D.3d 1143 (3d Dept. 2010) (remanding to consider whether plaintiff’s conduct was the sole proximate cause of the accident).

7. 18 A.D.3d 403 (1st Dept. 2005).

8. See also Aragon v. 233 W. 21st St., 201 A.D.2d 353 (1st Dept. 1994) ("[T]he proximate cause of the scaffold’s collapse was the breaking of one of the supporting ropes, not the plaintiff’s decedent’s failure to wear a safety harness").

9. 88 A.D.3d 561 (1st Dept. 2011).

10. See, e.g., General Liability Loss Costs (Dollars per $1,000 of Payroll), INSURANCE SERVICES OFFICE, available at http://www.scaffoldlaw.org/index.php/scaffold-law-facts-faqs-learn-about-issue-reform-new-york (last visited April 20, 2013).

11. Illinois: Effects After Scaffold Law Repeal in 1995, U.S. Dept. of Labor Bureau of Labor Statistics, available at http://www.scaffoldlaw.org/index.php/scaffold-law-facts-faqs-learn-about-issue-reform-new-york (last visited April 20, 2013).