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

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.

 

 

 

 

 

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