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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 www.ScaffoldLaw.org 

Obsolete Scaffold Law is a Burden for All New Yorkers

recent editorial by Laura Zaepfel in the Buffalo News highlighted the impact of the scaffold law on contractors, small businesses, homeowners, and taxpayers. From the article,

“Under the Scaffold Law, contractors, employers and property owners are held 100 percent liable for any gravity-related injury of a worker,even when the worker is at fault. That may have made sense back in 1932, when ironworkers labored in shirt sleeves and worn shoes, but times have changed.

OSHA regulations have been in place since 1970; Workers’ Compensation laws have been enhanced. The safety of workers in high-risk occupations is at the forefront of our consciousness now more than ever before. In fact, new safety protocols, equipment and regulations have mitigated risks so much so that ours is the only state where a Scaffold Law still exists.

Zaepfel, the Vice President of Corporate Relations at Uniland Development Corp., stresses that the Scaffold Law impacts all New Yorkers, not just contractors and builders.

This problem is not exclusive to contractors and developers. Homeowners take a major hit in higher costs. Residential contractors are forced to pass their insurance costs along to homeowners by increasing the price of the job. Thanks to this exorbitant insurance premium, New Yorkers who build a home or put an addition on an existing home end up paying much more than they would if the Scaffold Law were less expensive to insure against.

It’s an increased cost that hits New York State homeowners in two ways, in both the short and long terms. Short term, homeowners pay a higher price for the initial work. Long term, their increased assessment equates to higher real property taxes.

Local government and local schools also get stuck paying for the Scaffold Law. But unlike homeowners, who have to foot the bill for their contractors’ increased costs, governments and schools have an out. They pass it on to the taxpayers. Large projects, like the modernization of the Buffalo Public Schools, would be considerably less expensive if the Scaffold Law were amended.”

The full article is available here.

Find out more about Scaffold Law reform and how you can help at:

www. Scaffoldlaw.org 

Newest Assembly Member: New York Needs Scaffold Law Reform

By: Scott Hobson – Lawsuit Reform Alliance of New York

We would like to join the many others in congratulating Ray Walter on becoming the new Assembly Member for Amherst.  Most significantly, we would like to applaud our state’s newest legislator on his commitment to reforming Labor Law 240/241, also known as the “Scaffold Law”.

His constituents should be familiar with the “only in New York” Scaffold Law, as they are currently on the hook for $13.6m because of this antiquated and outdated provision.

In 2006, a construction firm was asked by the Town of Amherst to do an estimate on a roofing job at a town-owned building.  During that estimate, three men improperly used the top half of a ladder, one without the safety grips on the bottom, to scale the building.  The men were aware of the ladder’s deficiency, so they asked another worker to secure the bottom while they climbed.  Soon after, that worker decided to climb the ladder himself, which collapsed, causing serious injuries.

The injured worker sued the Town of Amherst under the Scaffold Law, which holds an employer or property owner automatically fully liable for any elevation related work injury, whether or not they had direct control over the work site. Defendants in Scaffold Law suits never get the chance to defend themselves at trial and the injured worker is still entitled to worker’s compensation payments. There was little the town could do, and may ultimately have to pay the judgment of $23.4 million. With only $10 million in insurance coverage, the taxpayers of Amherst are on the hook for $13.4 million.

The people of Amherst could have used that money to pay for emergency services, hire teachers, repair their streets, or lower taxes. It is for exactly that reason that the newly formed “Let New York Work” coalition is advocating for Scaffold Law reform as part of their mandate relief package.

Ray Walter has already recognized the need to reform this outdated law. According Walter in a recent article in the Legislative Gazette,

“The main issue in western New York and across New York state is jobs. We need to do what we can to help create jobs here in my district. One of the ways that we propose to do that is … we need to address the regulatory burden that we place on our small businesses,” he said, referring to what he says are onerous costs imposed on local businesses such as those associated with Workers Compensation laws and measures such as the Scaffold Law, which holds employers fully liable for any elevation-related injuries sustained by workers, regardless of fault. The Scaffold Law in New York is the only law of its kind remaining in the United States.

As the 2012 Legislative session approaches, Ray Walter and his 211 fellow legislators will have the chance to finally make a difference. Reforming the Scaffold Law, which has broad bipartisan support, would not take away anyone’s right to recover for their injuries, it would simply give an employer or property owner the chance to defend themselves in court. This reform could create thousands of new construction jobs, improve workplace safety, help struggling small businesses, and take the pressure off the budgets of towns and cities statewide.

Rush of ‘Scaffold Law’ Lawsuits Makes Case For Necessary Reforms

A recent deluge of Labor Law 240/241 (a.k.a the ‘Scaffold Law’) lawsuits illustrate the need for legislative reform in New York.  New York remains the only state in the nation where a worker is not held responsible for their own negligence. Under this law, contractors, employers and property owners are held absolutely liable for “elevation related injuries”.

Reforming the Scaffold Law would create jobs, improve workplace safety, and strengthen New York’s economy, at no cost to taxpayers. The time for change is now to bring New York up to speed with the rest of the country.

On October 26, the highest court in New York State issued a decision on a case which will dramatically expand the scope 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.

On November 1st, a Court of Appeals ruling on the Scaffold Law reaffirmed that liability under the scaffold law is absolute. This means that a worker’s negligence or refusal to use safety equipment is inconsequential in the eyes of the law.

Visit www.ScaffoldLaw.org to learn more and see how you can make a difference!

Court of Appeals Decision Dramatically Expands the Scaffold Law

On Wednesday, October 26, the highest court in New York State issued a decision on a case which will dramatically expand the scope 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 held that the worker’s injury falls under the scope of the Scaffold Law.

This new decision greatly expands the liability of property owners and general contractors. Previously, the object had to fall from a height and be a material or load being hoisted or needing to be secured.  Now, no height is necessary; merely falling over, from the same level, is enough.

This new decision highlights one of the major problems with the Scaffold Law. While trial lawyers vehemently assert that the scope of the law has been narrowed, cases such as this tell a different story. Without a change to the law, a court decision can change the Scaffold Law without warning, exposing owners and contractors to absolute liability from which they had previously been safe. The presence of this uncertainty is reflected in general liability premiums, which will undoubtedly rise as a result of this recent decision. Yet again, small businesses and taxpayers across the state will see their costs increase despite the fact that they have done no wrong.

Will this decision make workers safer? Absolutely not. Rather, it will only serve to drive up costs and incentivize even more indefensible lawsuits against New Yorkers. Unquestionably, the need to give property owners and contractors the right to defend themselves from a lawsuit by a negligent worker has never been greater. New Yorkers must stand up for rationality and demand more jobs, safer workplaces, lower taxes, and an end to million-dollar trial lawyer handouts.

LRANY Announces Launch of Scaffoldlaw.org – Fighting to Reform a 19th Century Law

A new coalition of New York employers, farmers and others has joined together to make a major push to reform New York’s century-old “Scaffold Law” to help promote economic growth and recovery throughout New York.

Under New York’s Scaffold Law, contractors, employers and property owners are held absolutely liable for “elevation related injuries” even if the injury was not their fault.

New York remains the only state in the nation where a worker is not held responsible for their own negligence. Illinois was the last to reform the law, in 1995, and the effect was immediate: 50,000 new jobs and a sharp decrease in workplace injuries.  By reforming the law we can increase workplace safety and encourage greater responsibility.

The coalition has launched a new website –www.scaffoldlaw.org – to educate New Yorkers about the issue and to encourage grassroots supporters to contact their legislators to express their support for reform.

See the Press Release that LRANY issued earlier today.

 

Visit scaffoldlaw.org today to see how you can help reform this antiquated and outdated law!