New York State Bar: Wilinksi Case “Another Entry in the Swolen Legder of the Scaffold Law”

By: Scott Hobson

On October 26th, New York’s highest court narrowly ruled on a case which created yet another significant expansion of the Scaffold Law.  In the case, Wilinski v. 334 East 92nd Housing Development Fund Corp, 2011 NY Slip Op 7477, a worker was demolishing the walls of a warehouse building. In front of the brick wall that the worker was demolishing were two metal plumbing pipes rising vertically from the floor on which the worker was standing.

Two other workers demolished an adjacent wall about four feet away from worker, causing that wall to collapse into the pipes. The pipes toppled onto the worker and caused an injury. The Court of Appeals held 4-3 that the worker’s injury fell within scope of the Scaffold Law. Prior to this decision, the Scaffold Law did not apply in cases where a falling object was on the same level as the worker (i.e. tipping objects).

Justices Pigott, Graffeo, and Read dissented, noting that the majority’s decision deviated from “ …the overwhelming and settled body of case law that establishes that section 240(1) [the Scaffold Law] does not apply when the base of the falling object is at the same level as the worker and the work being performed. “ The dissenting justices pointed out that, moreover, there was no specific safety device which would have prevented the accident.

The November issue of the New York State Law Digest, a publication of the New York State Bar Association, featured an overview of the High Court’s decision and the case law behind it. Significantly, the article highlighted the pro-plaintiff construction of the decision, and noted that,

“Given the close division among the judges …the liberal construction can’t be said to enjoy a liberal margin, or we fear, to make more predictable the outcome of later cases. They’re seldom identical on their facts and what appear to many to be just slight variations easily generate divisions among the judges.”
The lack of consistency in the interpretation of the law has significant impacts. This latest decision has broadened the applicability of the Scaffold Law, with a commensurate increase in liability exposure. It is impossible to imagine how this new decision will not lead to a corresponding increase in the cost of general liability insurance. Moreover, this expansion in liability will likely lead to an increase in litigation, putting even more pressure on contractors, property owners, and taxpayers. Over a century of court decisions have transformed the Scaffold Law to the point where it bears little resemblance to the landmark safety statute the legislature once intended it to be. Clearly, the need for reform to the law has never been greater.



Find out more about this outdated law and how you can help make a difference at 
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