Scaffold Law Fact Check

June 5, 2013

New York State Trail Lawyers Association (NYSTLA) says…

New York’s Scaffold Law makes construction safer.

It doesn’t. OSHA’s rigorous scaffold safety regulations far exceed those put forth under the Scaffold Law. In fact, Albany Law’s Government Law Center, in a report titled “Reforming Labor Law 240/241: Bringing New York State Into the 21st Century,” noted that “There is no empirical research which establishes, or even suggests, that New York’s safety record is attributable to these Labor Law sections [240/241). There is evidence, however, that this safety record is a result of other factors.”

As former Chief Judge Brietel noted in Kelly v. Diesel Construction Division of Carl A. Morse, Inc. (1974), “It is therefore no longer true, if it ever was, that making the owner or general contractor inescapably liable provides an added incentive for safety standards on building projects.”

When Illinois repealed its Scaffold Law in 1995, construction fatalities actually declined by 30% over 5 years, even as construction employment soared.

The Scaffold Law applies only to height-related accidents.

That’s not what the Court of Appeals says. In the case of Runner v. New York Stock Exchange (2009), the highest court in the state determined that the Scaffold Law applies to all injuries that result from the application of gravity, not just falls from height. This precedent dramatically expanded the scope of the law, and has been echoed in countless subsequent cases. In 2011, in the case of Wilinski, et al. v. 334 East 92nd Housing Development Fund Corp, the Court of Appeals ruled that even objects on the same level as the worker, which tip and fall, can trigger liability under the Scaffold Law.

The Scaffold Law does not apply to workers injured solely because they failed to follow instructions, failed to use available safety equipment, misused or incorrectly set up safety equipment, or were injured because of their own actions, such as being intoxicated.

Not exactly. While the court may reject a Scaffold Law case if the worker was entirely responsible for the injury (i.e., was the “sole proximate cause”), such dismissals are typically rare, since it is virtually impossible to imagine some way in which even a responsible employer could have possibly done more to prevent an injury. The devil is in the details; remember, the defendant is fully liable even if they are as little as 1% at fault. For example, in the recent case of Mazurett v. Rochester City School District (2011), the defendant was found liable under the Scaffold Law despite the fact that a site supervisor testified the plaintiff was instructed not to climb the exterior of a portable scaffold, which subsequently tipped and caused his injuries.

Weakening the Scaffold Law would shift safety responsibility from owners and general contractors, who control the site, to workers, who do not control the site and are in a subordinate position.

Partly true. The proposed reform to the Scaffold Law would apply the standard of comparative negligence (the legal standard in virtually all civil trials in an overwhelming majority of jurisdictions) only in cases where the worker was intoxicated, disobeying safety training, or committing a criminal act. The above example is not accurate in this regard; the contractor would still be held fully liable if they were responsible for the injury.

Moreover, allowing each party to defend their actions in court (due process of law), a principle supposedly championed by NYSTLA, is a fundamental tenet of our civil justice system. Denying one class of defendants this right, particularly in the absence of any benefit to society as a whole, is unconscionable.

OSHA cannot be relied on to keep construction sites safe.

That’s missing the point. It is well established that the link between the Scaffold Law and construction site safety is convenient fantasy. This “A is true, therefore B” argument sidesteps the issue at hand, in the hopes that no one will notice. If NYSTLA truly believes that OSHA is not adequately enforcing existing regulations, then they should be advocating for greater resources for that agency, or more comprehensive safety standards (they currently do not).

The Scaffold Law has not hindered construction or cost construction jobs in areas where the economy has been strong.

As NYSTLA points out, “it’s the economy, not the Scaffold Law.” When the economy is strong, construction and development increase. That New York’s construction industry performed well relative to the national average is hardly an indication that the Scaffold Law has no impact on construction employment. According to the Insurance Services Offices, loss costs for elevated highway construction projects in New York City are the highest in the nation, $747 per $1,000 of payroll, three times that of Philadelphia, nearly seven times higher than Los Angeles, and nearly five times higher than Chicago. These costs are a direct result of the Scaffold Law, and are responsible for astronomical premiums which drive up the cost of all construction projects. Fundamental economic principles dictate that higher costs will result in lower demand and fewer jobs, period.