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

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.

 

 

The New York Daily News just ran a very good, albeit heartbreaking story about a 30-year old construction worker who was killed in a crane accident at a subway extension project for the No. 7 train when the boom suddenly fell causing debris to crush him.

Typically, I don’t like to re-post articles about construction accidents on this blog. I am not a reporter and so I leave that news function where I think it belongs, which is to the newspapers. I’m here to comment about the legal system and how it treats injured workers. There is also a morbidity to that type of blog posting that leaves me a little uneasy, like I’m using someone’s misfortune and tragedy to bolster my own internet presence.

However, I make an exception here. The story is newsworthy for this blog because there were numerous warning signs that this accident could occur and there was a failure to inspect the crane. In other words, even with strong laws on the books, accidents like this one still occur, and therefore, the last thing that government should do is weaken those laws.

Click this link to read an article (in which I was quoted) that explains how legislative efforts were being made in that direction. Having failed at efforts to completely do away with these laws — codified as Labor Law 200, 240(1), and 241(6) — business interests are now trying a death by a thousand cuts approach, slowly taking away their protections bit-by-bit until there is nothing left.

It’s so unfair, they protest, that owners and general contractors could be held liable for construction accidents.

But look at the accident that took the life of Michael Simermeyer: according to the article, the crane was making noises in the weeks before the accident that worried workers. Mr. Simermeyer had actually told a friend that he was scared at the work site. Further, the crane wire wasn’t spooling properly and sources opined that the crane operator knew of it and either did not report it or was ordered to keep working by his superiors. The operator had also previously been involved in two other accidents. And the City had not performed a scheduled inspection of the crane.

This incident is a prime example of why strong construction accident laws are needed in New York. Safety comes from the top-down, and if those on top are not legally responsible for safety, then unsafe practices will fluorish. The top dogs will have little incentive to strongly enforce good safety practices at the work site — especially when the incentive is usually to get the work finished quickly. And workers cannot simply count on government agencies for protection, as is evidenced by this story. Rather, strong liability laws are essential.

A worker such as Mr. Simermeyer should not have been scared to go to work each day, and certainly should not have died.

 

Corporate interests sing a common refrain whenever the subject of safety testing and regulations in the workplace comes up: It costs too much and stifles business!

They also add that it kills jobs, which of course is not their concern, but which is effective Orwellian messaging to get the public on their side.

A recent study of the efficacy of OSHA testing challenges this position, concluding that it not only prevents worker injuries on the job but also entails little cost to business.

Researchers looked at 409 companies that had workplace safety inspections and 409 that did not (all of the companies were located in California). They concluded that inspections improved workplace safety and did not adversely affect company profits. In fact, inspections reduced injury claims by 9.4 percent and cut workers’ compensation costs by 26 percent.

Business interests countered that the study focused on firms in high-risk industries, and was not accurate because it did not consider the costs of OSHA inspections to less dangerous industries.

In New York City, we have seen castastrophic construction accidents occur, such as crane collapses on the east side, that likely could have been prevented with adequate safety inspections. Hopefully, the misleading slogan that regulation is bad will lose its force and there can be more protection for workers to prevent injuries in the future.

An April 4, 2012 Reuters article, “Advocates Call For Scaffolding Law Reform,” focuses on efforts by business groups to repeal parts of New York Labor Law 240(1), which has existed for 130 years and provides important protections for injured construction workers.

The momentum behind this effort, led by State Senator Gallivan who has sponsored a bill in the Senate, is considerable.

Yours truly, Eric Dinnocenzo, author of the New York Construction Accident Lawyer Blog, was quoted as opposing the bill.

This is the wrong bill at the wrong time. When Wall Street has caused tremendous harm to the economy and working people, the New York legislature should not be enacting bills that limit workers’ rights in favor of large financial and insurance companies.

The Scaffold Law imposes strict liability on owners and general contractors where construction workers suffer a gravity-related accident that is caused by the lack of proper safety devices. The law requires that for work on a “building or structure” appropriate equipment–including scaffolding, hoists, and ladders–is provided to prevent a gravity-related accident.

Common accidents covered under the law are when a scaffold or ladder malfunctions, causing a worker to fall at a job site, or when an object is inadequately carried or suspended at a height and falls on a worker. Strict liability is only imposed where the lack of a proper safety device causes a construction accident.

The effort to repeal parts of the law is part of a sustained effort by the business and insurance lobbies. Make no mistake about it, this is an anti-worker bill at its heart. Because prior efforts at full repeal have failed, it is reasonable to believe that this particular bill is a first step to gradually over time do away with the Scaffold law entirely.

The bill seeks to replace the strict liability standard with comparative negligence where the worker: 1) fails to use available safety devices; 2) fails to comply with instructions regarding the use of safety devices; 3) fails to comply with safe work practices in accordance with safety training programs provided by the employer; 4) commits a criminal act; or 5) uses drugs or alcohol.

Why oppose this bill? Here are several reasons:

1. Legislation is not needed to address instances where workers commit criminal acts or are intoxicated at the work place. The bill implies that this is a problem, which it is not. Most construction workers are hard-working, decent people. As such, it is an anti-worker bill that targets them and links them with amoral or illegal conduct without justification.

2. Owners and general contractors set the tone for workplace safety. In other words, safety at the job site comes from the “top-down.”There needs to be a law in effect that places the responsibility for safety on them, or otherwise it will encourage work environments where they pass the buck when it comes to safety.

3.  Under Labor Law 240(1), workers still must prove that the accident was caused by a lack of proper safety devices. If there are proper devices, and the worker is solely responsible for the accident, there will be no recovery. The scope of 240(1) is therefore proper.

4.  The case law already prevents recovery where a worker refuses to use available safety devices.

5. Making employer safety training and instructions a factor in determining liability would be a big mistake. As it stands, owners and construction companies often improperly sway and discourage testimony in construction accident cases. Workers-many of whom are undocumented-are often nervous to come forward and tell the truth. Making this change to the law will take the focus off whether proper safety devices and allow evidence of safety programs and instructions that may never have existed.

6.  Workers compensation provides insufficient benefits (approx. $400 per week) for construction workers rendered seriously injured or permanently disabled from accidents that could have been prevented with proper safety devices.

I ask you to contact your state Assemblyman and Senator to urge them not to support the Scaffold bill.

In this day and age, where the rights of workers and teachers are under constant assault – Wisconsin being a prime example – and financial institutions have caused so much harm to the economy — the focus of this bill is completely misplaced.  In short, it is absolutely inappropriate to pass a bill that will harm vulnerable, injured workers to benefit insurance companies.

As I have previously discussed on this blog, the New York Court of Appeals has issued a number of decisions that have been supportive of workers’ rights in the context of construction accidents under the New York Labor Law.

On December 30, 2011, the Appellate Division followed this trend with the Fourth Department decision of Dipalma v. State of New York.

In the case, the plaintiff was injured when a large “skid box” containing debris slid off a forklift and struck him. The “skid box” fell from a height of only one or two feet above the plaintiff, which is notable because under prior Labor Law cases under section 240 – known as the “scaffold law” – this would have been considered a “de minimis” height differential that precluded liability.

The Fourth Department, however, cited to Wilinski v. 334 East 92nd Housing Development Fund Corporation, the subject of my last blog entry, for its holding that liability is determined by whether the construction accident was caused by the application of the force of gravity and there were not adequate protections to prevent the risk of harm, not by whether the object fell a certain number of feet.

As such, because of Wilinski, the plaintiff prevailed when he otherwise would not have.

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