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Business groups have put their muscle behind a legislative effort to repeal sections of the New York State Labor Law requiring extra protection for persons working above the ground. Labor Law Sections 240 and 241, known as the “scaffold law,” have been the source of a great deal of litigation in New York in recent years. Advocates of the measure, who have taken out advertising in Albany newspapers, say that the law as it is now applied exposes employers to liability even if they make a good-faith attempt to install safety devices for those at risk of falling. A bill sponsored by State Senator Dale M. Volker, R-East Aurora, N.Y. and by Assemblyman Joseph E. Robach, D-Rochester, N.Y. would replace the strict liability standard of the current scaffold law with a standard of ordinary negligence. “This would allow [building] owners or contractors to introduce into any possible case relevant facts, such as their compliance with safety procedures, thus providing the owners or contractors the protection that is the norm in other statutes,” said Matthew Maguire, the communications director for the Business Council of New York, which supports the initiative. One print ad, sponsored by New Yorkers for Civil Justice Reform, argued that under current law, innocent owners can be forced to pay when injuries are sustained, even by workers who may be intoxicated or disobedient. The Business Council is a member of New Yorkers for Civil Justice Reform, but has not itself taken out advertising in support of the measure. At a recent legislative breakfast in the New York City area sponsored by the Network of Bar Leaders, Suzanne Mattei said that the arguments made by supporters of the Labor Law revision are “a serious mischaracterization of what that law does.” Under the Labor Law, “an owner or contractor can’t be held liable unless there is a failure to put in place safety measures,” said Mattei, the legislative director of the New York State Trial Lawyers’ Association. She questioned the rhetoric of the bill’s supporters, saying that the “basic principle of the Labor Law is good and very sound” in that it places an obligation on owners and contractors to take steps to ensure the safety of workers at elevated heights. Maguire, on the other hand, said the law is not working in a balanced way, and that scaffold law cases ought to be handled more like common-law tort cases. “This has long been a key part of our tort-reform agenda,” Maguire said. “In our view, owners and contractors have a chance to defend themselves as such parties do in virtually all other tort actions.” The Senate and Assembly versions of the bill, which were both introduced on Jan. 3, have been referred to the Labor Committees of both houses. No hearings have yet been scheduled on the versions. INCREASED SUITS CLAIMED In contrast to the present version of the Labor Law, the Volker-Robach bill would require owners and contractors to “furnish devices and equipment where necessary to give reasonable and adequate protection.” The versions also allow defendants to take advantage of a safe harbor from liability if they can show that they have complied with state and federal occupational health and safety regulations. Senator Volker, in a memo sponsoring the Senate version, S.203, said the measure was needed because New York courts had advanced the concept of “strict liability” in enforcing contractors’ obligations under the Labor Law. He said that the courts’ interpretation of the law has “resulted in a substantial increase in the number of civil suits filed against contractors and owners.” Maguire said that the current scaffold law has “become such a gravy train for trial lawyers. It drives up costs of construction and liability costs for owners and contractors,” and is making it difficult for them to secure liability insurance. However, Mattei argued before the bar leaders that the law as currently applied requires that safety measures be put in place to protect at-risk workers. Owners and contractors, she said at the Legislative Breakfast, “are supposed to have safety equipment to protect people from dying on the job .� If they are doing everything they are supposed to do, they will not be liable under Sections 240 and 241.” Labor Law liability is today one of the most heavily-litigated issues in New York courts. In a January case in the Bronx Supreme Court, Justice Paul A. Victor ruled that a worker may be entitled to summary judgment even if there is a defense allegation that the plaintiff’s own misconduct was the sole proximate cause of the accident. Worker misconduct comes into play as a defense under the Labor Law, Victor said, only where adequate protections were furnished, and the plaintiff “intentionally misused” them.

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