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

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.

The Court of Appeals has recently expanded the scope of Labor Law 240(1) (the Scaffold Law) by refocusing it on whether the cause of a construction accident is gravity-related, as opposed to a historical tendency to simply view whether it involved a falling worker or falling object from high above. This signals a positive development in New York construction accident law.

In Wilinski v. 334 East 92nd Housing Development Fund Corp., the plaintiff was a construction worker who was demolishing brick walls at a vacant warehouse when an unsecured vertical plumbing pipe about 10 feet tall fell over onto him. Debris from a nearby wall being demolished struck the pipe which caused its fall.

Prior decisions had held that an object that toppled over, with its base at the same level as the plaintiff, did not result in a Labor Law 240(1) violation. This was historically considered to be due to the fact that the worker and the object were at the same level. Hence, there was no falling object from above that fell onto the plaintiff.

The Court of Appeals held that the “core premise” of the statute is to impose liability when there is a “failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents.” It also differentiated prior decisions, such as the Misseritti case from 1995, saying there was no liability not because the object was at the same level as the plaintiff, but rather because there was no causal nexus between the accident and the lack of a safety device enumerated in the statute. For instance, in Misseritti a wall fell over onto the plaintiff; “braces” which are enumerated in the statute as a safety device are of the type used to support elevated work sites, not to shore up walls.

The Court then reiterated its holding in a recent decision from 2009, Runner v. New York Stock Exchange, Inc., that “the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.”

Here, there was a significant elevation differential because the ten foot pipe fell at least four feet onto the worker below who stood about 5-feet 6-inches. And the accident was caused by gravity.

Again, we see a drift in Court of Appeals decisions in favor of expanded protections for injured workers. This is a welcome decision for New York construction workers and New York construction accident lawyers.

The New York Law Journal reported on September 30, 2011 that business groups are seeking to scale back the protections of Labor law 240 and 241, which holds owners and general contractors at construction sites liable for many worker injuries. These protections are more favorable for workers than a general negligence standard and their aim is to place the responsibility for safety on those who own and operate the construction site.

Labor Law 240 and 241 are under constant assault especially from insurance companies who are responsible for paying verdicts and settlements in these cases.

They are, however, very important worker protection laws that should not be scaled back or eliminated. They are essential in order to provide compensation for injured workers and also to ensure that proper safety is provided at construction sites by those in the best position to ensure it–the owners and general contractors.

The Appellate Division, First Department, has recently further defined the circumstances when a subcontractor will be liable under Labor Law 240 and 241 for a New York construction accident. In brief, if the subcontractor has the authority to supervise or control the accident-causing operation or the work area where the accident happened, it may be liable. (The case is Nascimento v. Bridgehampton Construction Corporation).

In this case, a worker fell while descending an extension ladder, when the unsecured extended portion of it suddenly slid down. The plaintiff sued the general contractor, a subcontractor, and a sub-subcontractor. The plaintiff was employed by the company at the end of this chain, a fourth contractor that performed the framing work.

The Court observed that not each and every subcontractor in the chain of employers will be liable under the Labor Law. The standard is whether the subcontractor had the authority to supervise and control the work giving rise to the accident, rendering it the general contractor’s “statutory agent.” In a bit of convoluted logic, the court then defined a statutory agent as an entity that has been “delegated the supervision and control either over the specific work area involved or the work which gave rise to the injury.” If the subcontractor only controls a different area of the work site than where the accident occurred, there is no liability.

Here, according to the subcontractor, the contract between it and the sub-subcontractor did not establish that the subcontractor had authority over the accident location. However, the court held that the subcontract between these entities delegated the authority to supervise the work to the sub-subcontractor and from this it could reasonably be inferred that the subcontractor initially had this authority. Moreover, “once a subcontractor qualifies as a statutory agent, it may not escape liability by the simple expedient of delegating that work to another entity.”

This is a good decision. It establishes that any company that is responsible for an activity or work area must also be held liable for accidents under its umbrella.

Two New York City construction workers fell to their deaths in a construction accident on the Upper West side of Manhattan. The workers, who did not have harnesses for fall protection, fell 65 feet down an elevator shaft. Other fall protection should have been, but was not provided.

You can read about this construction accident here.  

According to the article, there have been 3 construction-related deaths in 2011, just one short of the 4 deaths that occurred in 2010–and it’s only February. This accident is another sad, grizzly reminder of the need for proper construction safety practices at New York City construction sites.

Announcement

I am announcing that I have opened up my own practice: The Law Offices of Eric Dinnocenzo.

You can view my website at www.dinnocenzolaw.com.

Readers of this blog, and those who are knowledgeable about the New York Labor Law — which applies to construction accidents in New York — know that it provides exceptional protections to workers who are injured in either a falling accident or when they are struck by a falling object.

Interestingly, this second category has been expanded by the Court of Appeals in the Runner case. The requirement of a height differential, which has always been required to establish liability, has been altered by this decision. One commentator, David Scher, has observed:

[T]he Runner Court was not totally unconcerned with also finding a significant elevation differential.  The Court did observe that the height differential was significant given the weight of the reel and the “force it was capable of generating.”  However, the height differential described by the Court was not that between the worker and object, but rather between the object and the bottom of the staircase below the plaintiff.  Significantly, the Court focused on “force” and lacked concern for the number of feet or inches that the reel fell.

Several years before Runner was decided, the Second Department issued a decision which supports this theory. In Salinas v. Barney Skanska Construction Co., 2 A.D.3d 619, 769 N.Y.S.2d 559 (2d Dept. 2003), the plaintiff was an employee of a subcontractor hired to perform demolition work at a building.  The plaintiff was removing a large heavy air conditioning duct attached to the ceiling by burning through the metal rods supporting it.  He stood underneath the duct which was anywhere from 20 inches to 5 feet above the top of his head.  No safety devices were used to lower the duct, though two wooden planks could have been used to help support the duct and provide warning that it was about to fall.   

According to the Second Department, the plaintiff demonstrated that the duct fell because of the absence or inadequacy of a safety device, and, therefore, the question turned to whether the accident involved an elevation-related risk.  The Court held that it did because the “plaintiff had to stand directly underneath a duct that he was removing, which weighed several hundred pounds and could not be supported by him, even if it was 20 inches, not several feet, above his head.” 

Thus, it is not the number of feet or inches that the object fell that determines if the Labor Law has been violated for there to be an actionable New York construction accident, but instead if the object is large enough to generate significant force in the distance that it fell.

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