By nature, the construction industry is one of the most dangerous industries for workers. Between power equipment, heavy objects, and tall heights, construction workers can face deadly situations every time they step out onto the job site. Therefore, when construction workers start a new project, they operate under the assumption that they will be covered in the event of an accident or injury.
However, one state has a law on the books that many say goes too far in its protection of construction workers – New York’s Scaffolding Law.
What is New York’s Scaffolding Law?
New York Labor Law § 240 has been a point of contention since its inception. Dating back to 1885, it was created in response to the rising number of deaths and injuries associated with the growth of New York City into the metropolis that it is today. The law states that all contractors, owners, and their agents must provide proper protection to construction workers under the scope of their employment. However, the controversial aspect of the law provides that the above parties are held strictly liable for any harm caused and are not subject to the state’s normal comparative negligence laws.
What is New York’s Comparative Negligence Law?
All tort related cases hinge on the idea of negligence. This is essentially the idea that a person failed to exercise care or caution, and because of that, someone else was harmed. There are a few different interpretations of negligence laws. New York, specifically, operates under what is known as pure comparative negligence. This means that any damages a plaintiff recovers are reduced by their share of fault.
For example, take the example of a construction accident. A worker falls from a few stories up after a safety rail on scaffolding breaks. It is later found out that the worker had been drinking on his lunch break which contributed to him to losing his balance and testing the rail in the first place. Under normal contributory negligence laws, the jury would have to decide what percentage of fault is associated with each action.
For the sake of argument, let’s say the construction company was assigned 50% of the fault for the poorly constructed safety railing and the worker assigned 50% for drinking on the job. Therefore, the worker would only be able to recover the 50% that the company was liable for. However, under New York’s scaffolding law, the percentage of fault is irrelevant. The construction company would be held 100% liable for the worker’s injuries.
Exceptions to the Law
The law is not without restrictions. The scaffolding law does not apply to:
- Owners of one- and two-family homes who do not directly control construction work. This is an effort to contain this law to only larger projects.
- Workers not using an elevation device. Elevation devices include things like scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, and ropes. If a worker was to drop a personal item onto a coworker, this would not be covered under the law.
- Injuries that do not result from the force of gravity. This means either a fall or an object falling.
- Non-construction related accidents. The injury must occur under the scope of construction related work. For example, if a pully falls but was being used to hold up a sign or decoration, this would not count under the law.
- Workers who are solely responsible for the accident or injury. If a worker is 100% responsible for their actions, willingly jumping off a building for example, then the statute does not apply.
Arguments Against the Law
New York is the only state that has strict liability when it comes to gravity related construction accidents. Opponents of the law include insurance companies, real estate investors, and contractors. They argue that the law:
- Increases construction injuries. A 2013 study stated that the statute adds 5.5 non-fatal worker injuries per 1000 full-time employees annually. This leads to the notion that workers take riskier actions knowing that they will receive full benefits in most injury cases.
- Makes construction in New York more expensive. The same study estimated that the law increases construction costs by at least 7-10% to handle the increased liability costs.
- Is supported by greedy trial lawyers who want big payouts on behalf of their clients.
Arguments for the Law
The scaffolding law is mainly supported by construction workers and many construction accident attorneys in New York. They argue:
- Construction worker fatalities are trending upward in New York and the law helps place a greater emphasis on worker safety.
- Removing the law would create a barrier for injured workers to receive fair compensation for their injuries after taking on more dangerous tasks.
- Arguments against the law are overblown. The statue only applies in specific cases and workers who are completely liable are barred from recovery.
Is the Law Fair?
Like many tough legal questions, the answer depends on your point of view. From a business perspective, increased costs and more potential liability are a negative. However, from the perspective of an individual worker and their counsel, a higher certainty of compensation for dangerous work is a positive.
Humans make mistakes. And placing a numerical value on their life and health as a result of that same fallibility has and always been and will be a difficult task. The New York scaffolding law is an attempt to remove the guess work from that equation but does come with some empirical drawbacks.
What do you think? Should the scaffolding law remain or be removed?