New York Labor Law § 240, commonly called the “Scaffold Law,” desperately needs reform. In recent years construction insurance costs have skyrocketed due to problems with this law. A proposed bill would amend the law.
Join NYC/LI NARI in supporting Senate Bill S543 by clicking this link.
Labor Law § 240, as well as a related law Labor Law § 241, are vicarious liability statutes that hold entities on construction projects liable for the negligence of lower tier contractors. Under the law, general contractors and property owners are liable for a subcontractor’s negligence.
The problem with Labor Law § 240 is that by judicial decree Labor Law § 240 does not allow a contributory negligence defense. Contributory negligence allows a jury to apportion fault between the plaintiff and the defendant. For example, if a worker fell from a ladder, and the worker had been drinking on the job or purposefully failed to follow safety instructions, under contributory negligence rules the jury can apportion fault – say 90% of the fault is the worker and 10% of the fault is the employer. In such a case, the worker only gets 10% of the damages he incurred. Under the current Labor Law § 240 law, however, contributory negligence cannot be raised as a defense. So, in the above example, even if a worker is 90% at fault, the employer has to pay 100% of the injured worker’s damages. The party being sued has to show that the injured worker is 100% at fault to avoid liability.
The proposed bill would amend the law allowing for contributory negligence in Labor Law § 240 cases. The bill states the following:
In any action or proceeding to recover damages for personal injury . . . pursuant to [Labor Law § 240] where safety equipment or devices have been made available, and a person employed . . . has failed to follow safety instruction or safe work practices in . . . or was impaired by the use of drugs or alcohol, and such failure, act or impairment is a proximate cause of an injury to such person, . . . the amount of damages otherwise recoverable shall be determined in accordance with [CPLR] section fourteen hundred eleven [which allows a jury to consider the person’s culpable conduct including contributory negligence and assumption of risk].
The NYC/LI Chapter of the National Association of the Remodeling Industry (NARI) and various contractor trade groups are calling for New York State to reform Labor Law §§ 240/241 because of escalating insurance costs. Contractors are facing a threefold hit respecting these costs. First, recent large damage awards to injured workers have increased insurance premiums. Second, higher awards require contractors to carry higher limits. Third, there is word that certain carriers have left the market, thus decreasing competition.
The current bill is expected to alleviate some of the insurance burdens placed on contractors due to the current law.
Click here for more information on the Scaffold Law.