A New York Construction Accident Lawyer Who Represents Injured Workers Tracking Developments in Construction Accident Law.

2 Years, 31 Dead

The New York Times published an editorial about the excessive number of construction accident deaths in New York City — 31 dead in 2 years.
In fact, 29 of the 31 workers were working at nonunion sites. People should respectfully take that astonishing figure into account the next time they criticize unions.
Further, the rate of construction is rising in New York City, while safety enforcement lags behind. One protection that workers have–and, unfortunately, it comes after the fact, meaning, it is one that we lawyers can enforce only after an injury happens–is Labor Law 204(1) and 241(6) which apply to owners and general contractors. The former is known as the Scaffold Law and the latter can impose negligence based on the violation of enumerated safety factors.
The real estate and insurance lobbies are constantly fighting to gut these laws, a sad irony in light of the human toll of unsafe work environments.

The New York Times reports on a substantial increase in construction worker injuries and deaths in New York City. Construction has increased in recent years, but the rate of construction accidents has increased even more. In the last year, there have been 10 contruction-related deaths, whereas previous years have averaged 5.5 deaths. The accident rate has increased by 52 percent from the previous year.

New York City is in the midst of a historic building boom. It seems like around every corner there is a new building being erected or at least some other type of major construction project. The New York Daily News has reported on the human toll that has resulted from the boom and from lax safety oversight.

The insurance and construction industries are consistently trying to weaken construction worker protections, but this article makes it clear that with 18 construction worker deaths in the past year, this would be a step in the wrong direction and possibly lead to even more fatalities.

The Wall Street Journal has an article about how contractors are failing to provide safety devices to prevent falling accidents on the job.

It’s a growing problem, the article notes, as construction worker deaths falling from heights have increased over recent years.

In fact, OSHA, which has its critics when it comes to enforcing worker safety standards, has even had to step in to protect workers in Arizona because proper standards are not being enforced by the state. Yet, shockingly, contractors and the state have nonetheless ignored federal standards.

On April 7, 2014, I was quoted in a New York Post article, “Midtown’s One57 residential tower hit with 19 civil suits,” by Julia Marsh.

As the article explains, out of the 19 civil suits, there are ten injury lawsuits pending against this midtown development for the super-rich, where sales of apartments range as high as a cool $90 million. Ms. Marsh quotes me as saying that’s a high number, and certainly it is.


It’s not often that Labor Law 240 (a/k/a the “Scaffold Law”) makes it into the New York Times. But today the Times reported on how efforts are firing up in Albany to limit its protections so that worker fault will limit the amount of jury verdicts.

This would be a big mistake. This law serves to protect vulnerable workers–many of whom are Latinos and immigrants–and who each day report to extremely dangerous jobs. Unsafe scaffolds and ladders can lead to serious injury and even death. In fact, the article reports that 136 New York construction workers perished from 2003 to 2011 in falling accidents.

The truth of the matter is that owners and general contractors do sometimes turn a blind eye to safety, when there are competing concerns on the job such as timing and revenue. Safety must come from the top-down, and these entities are in the best position to enforce it. In addition, the Scaffold Law encourages them to hire firms with strong safety records, instead of hunting for the cheapest one with safety considerations pushed to the side.

The strict liability standard that is in force requires the injured worker to prove there was an unsafe elevation device. Insurance and business groups’ claims that workers can collect large settlements when they are at fault for the accident are overblown and often untrue.

From what this blogger has heard through the grapevine, Governor Cuomo is in need of upstate New York support in order to strengthen his standing for an eventual White House run. This support is in jeopardy due to his stances on fracking and gun control, but repeal of or at least restricting the scope of the Scaffold Law is something that many upstate legislators support.

In addition, there has been an outcry that escalating insurance costs may hamper the Tappan Zee Bridge construction project.

But supporters of the law have countered that if it really does significantly increase insurance costs, insurers should be made to open their books and lay bare their proof. Predictably, insurers have refused to do so, which indicates, at least from this plaintiff attorney’s perspective, that they are just blowing smoke.


It seems that each year New York Labor Law sections 240(1) and 241(6) are under attack from business and insurance interests, and in their battle cry, which is loud, frantic and furious, they claim that these laws, which serve to protect construction workers, actually provide too many protections, even covering accidents where the injured worker was totally at fault and the contractor did nothing wrong.

The Labor Law, they intone, far more generously covers workers than the laws of ALL OTHER STATES, at the expense of business and jobs.

They are always crowing about the sanctity of jobs, though you never hear them calling for job safety.

Well, I read a recent article that says this isn’t quite true–that New York laws are not that different from those of other states. Sure, New York has strong laws on the book to protect its workers in the building trades. But they are not necessarily more broad than those of other jurisdictions. And things even out when you consider the local construction environment, at least in New York City, where skyscrapers soar hundreds of feet, and there are many undocumented workers who are more vulnerable to workplace abuses. Working in construction is dangerous, and probably no place is it more dangerous in the 50 states than New York City.

Under section 240(1), often referred to as the “Scaffold Law,” New York does provide absolute liability for accidents that involve an elevation differential–usually accidents where a worker falls from a height or is struck by a falling object. But there is an exception where the worker refuses to use an available safety device or is the sole proximate cause of the accident. The claim that workers can collect settlements or win verdicts where they purposefully jump off a ladder, or refuse to use a harness, some other outrageous fact pattern leading to injury, are typically false PR generated by insurance companies.

Under section 241(6), the owner or general contractor will be vicariously liable when a contractor fails to comply with concrete regulations contained in the Industrial Code, which is a listing of specific requirements for particular types of jobs, i.e. a power saw should have a guard. Other states have a similar legal framework by incorporating Restatement (Second) of Torts section 424 which provides that one who is under a duty to provide safety precautions by statute or administrative regulation is subject to liability if its subcontractor fails to provide the safety precaution. Sounds quite similar, doesn’t it? In fact, some states go above and beyond by imposing liability when a dangerous activity causes an accident, even if that activity is not specifically proscribed by statute or regulation. Not in New York, though, under section 241(6).

Relatedly, New York Labor Law 200, which is not often relied upon in litigation, will impose liability for a dangerous activity (as opposed to a premises hazard such as a slippery floor) where the owner or general contractor exercises control or supervision over the means or methods used that caused the accident. That is to say, there must be active oversight and the authority to correct an unsafe practice and that unsafe practice must have caused the accident. In other states, however, liability is imposed upon an entity that retains control of any part of the work performed by an independent contractor.

To use an example, if, say, an independent contractor engaged in the unsafe use of a crane that resulted in a workplace injury, in New York there would only be vicarious liability if the owner or general contractor actively supervised and controlled the usage of the crane. In other states, all the owner or general contractor would have had to be responsible for is some part of the overall work in order for liability to attach. This is a significant distinction.

So, as you can see, New York is not that different from other states when it comes to construction accident law. In some ways, most notably accidents involving an elevation differential, the Empire State provides greater protections, while with regard to accidents that do not fit neatly into the categories created under section 241(6) and the Industrial Code, it may provide less.

So next time you hear tort deform battle cries against the New York Labor Law, don’t believe the hype.






New York has a strong law that protects workers who are injured due to falling from a defective ladder or scaffold, or another type of gravity-related accident. It’s codified as New York Labor Law, section 240(1) and it’s commonly referred to as the “Scaffold Law.”

Each year in the New York legislature it is under attack from business and insurance interests and this year is no different. But it’s a very important law that needs to be kept in place.

The Labor Press published a June 11, 2013 piece illustrating that it is a vital protection for New York construction workers who suffer on-the-job accidents. It profiles 28-year-old construction worker Chris Gunn, an ironworker who fell 25 feet and landed on his head when a beam he was helping to install came loose. He is now paralyzed and has brain damage. If safety lines had been put in place, his injuries could have been prevented.

If the Scaffold Law was not in effect, he would likely be left in the care of the state, rather than with his family.

According to the article, “From 2009 to 2011, there were 102 construction worker deaths in New York State, according to NYCOSH. In 2011, over 700 construction workers died nationwide … being a roofer is twice as dangerous as being a cop. ”

As such, the Scaffold Law is a crucial law supporting worker safety.

Some misconceptions about the Scaffold Law are that it allows a careless or negligent worker to win his lawsuit. However, as the law is interpreted by courts, the worker will not prevail if he is the “sole, proximate cause” of the accident. That means that there must have been something wrong with the ladder or scaffold being used in the accident in order for the worker to recover. If the worker is truly the only factor in the accident, he will not prevail.

The law is also criticized by business and insurance groups because it makes owners and general contractors liable even if they are not negligent. But this encourages safety from the “top down.” A worker’s employer is not liable for his accident under the Worker’s Compensation law. Thus, if only the employer is liable, construction workers like Chris Gunn will not receive the compensation they need and deserve.

Significantly, from a policy standpoint, if owners and general contractors are not held liable, it encourages unsafe and shoddy construction practices, because at the end of the day, if there is an accident, no one will have to pay except for worker’s compensation. The cheapest and fastest contractors will be hired and worker safety will take a backseat. Unfortunately, only if owners and general contractors have some skin in the game will safety rank high in importance at a construction site.

So for workers out there, whether in construction or another field, the message is clear: support the Scaffold Law. Attempts to repeal it are just another salvo in the persistent attempt on many different fronts to eliminate worker’s rights.




There is an excellent post on one of my favorite law blogs, The Pop Tort, about how a large slice of our population is unable to afford legal representation in critical areas such as domestic violence, child custody and housing.

However, there is a notable exception where, if a person suffers an injury due to the negligence of another, she is able to hire lawyer by entering into a contingent fee agreement where the lawyer gets paid out of the proceeds of any recovery. In other words, it is not the client who pays the legal fee, but rather it is ultimately the defendant who is responsible.

When the defendant pays out a verdict or settlement, the attorney takes out a chunk for the legal fee and the rest goes to the client.

Unfortunately, this system of compensation–which is the only way that most people can hire a lawyer to represent them in an injury case–is under attack from corporate and insurance interests. While there is never any controversy about how much they pay their lawyers to defend them from legal claims, they have stirred up a hornet’s nest regarding the contingent fee agreement, leading to caps on fees and other adverse legislation. This is nothing more than an assault on the ability of regular folks to hire a lawyer.

Read the post. You’ll see.

Although New York Labor Law 240(1) has undergone a rather significant judicial expansion in the past few years, beginning most notably with the Runner case decided by the Court of Appeals in 2009, plaintiff attorneys should take heed that lower courts have at times not shown a willingness to read the statute in an overly-broad fashion.

A recent example is McKenzie v. Cappelli Enterprises decided on November 30, 2012 by Judge Shlomo Hagler of the Supreme Court, New York County.

The plaintiff’s accident occurred when he climbed a ladder carrying hot asphalt in a bucket, and when he set the bucket down on the roof the asphalt splashed on him. The asphalt was 500 degrees and plaintiff required skin grafts.

The plaintiff claimed that section 240(1) was violated because he was working at an elevation and the asphalt was a material that should have been secured, as the terms of the statute require. The court rejected this argument, finding that the accident was the result of “usual and ordinary dangers of a construction site” and not the application of the force of gravity to an object that required securing. The moral of the story, then, for Labor Law afficionados, is that just because a worker is injured at a height does not necessarily warrant the imposition of section 240(1) liability.

This particular holding, however, did not mark the end of the plaintiff’s journey through the legal system. The court found that the issue of whether certain Industrial Code sections were violated, triggering the protections of section 241(6), should be submitted to a jury.



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