Thursday, June 27, 2013

Legislature Kills Revision to New York's Scaffold Law

The scaffold law has been on the books in New York since 1885, and it seems as though businesses have been lamenting it ever since. But lately, this obscure law has morphed from a nuisance into a threat—not just to contractors and property owners, but to taxpayers. The statute, Labor Law 240/241, holds property owners and employers liable for ALL damages when a worker is injured in a gravity-related accident. This has led to some bizarre outcomes.

A worker who tumbled from an A-frame ladder that he'd leaned against a wall -- rather than opening it as instructed -- won $2 million. A town that had a leak inspected was hit with a $30.3 million judgment when a roofer, who refused to wear a safety harness, fell and was injured.

Only in New York is a worker's negligence irrelevant, even if his drunkenness or disregard for safety rules led to the injury.

As jury awards have escalated and the number of insurers willing to write policies covering falls in New York has dwindled, liability insurance costs have roughly doubled in two years.

The law has added an additional $400 million to the price tag of the new Tappan Zee Bridge. It costs the Metropolitan Transportation Authority money that could otherwise pay for five or more subway station rehabilitation projects annually, and the city enough to build seven new public schools. Municipalities around the state are similarly cornered.

Private project costs are likewise bloated. Smaller contractors—notably women- and minority-owned ones—get shut out of jobs because they can't afford the insurance. And funding that could be paying construction workers to improve local infrastructure instead goes to attorneys.

Defenders of the scaffold law, namely unions and trial lawyers, say it makes job sites safer. Not true. Absolving workers of any responsibility for accidents leads them to take risks and inevitably encourages some to game the system. After Illinois repealed its scaffold law in 1995, construction fatalities plunged and employment increased.

The worsening effects of New York's law have inspired a renewed reform effort by both private- and public-sector stakeholders, who are informing legislators of the cost to taxpayers, mass-transit commuters and businesses.

But this is about more than the soaring financial and social damage caused by the law. This is about a fundamental flaw in our justice system. The New York State Legislature tried to correct it by passing a bill to replace "absolute liability" for owners and employers with a "comparative negligence" standard used in many states when a worker is injured because of his own intoxication, criminality or violation of safety standards.

While it seems that such a revision in the law is an economic necessity, in one swoop, Speaker Sheldon Silver wielded his authority and struck down the debate altogether.

Although the proposal change would only have placed more burden on construction workers injured due to their own negligence, a spokesman for the assembly speaker said ‘any changes to the Scaffold Law will not be considered. We don’t think it’s the right policy to further burden injured workers.’

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