Steagall Rough Draft With Sources

The Scaffold Law: Essential Protection or ATM for Trial Lawyers?
By Lance Steagall

New York, April 12 – “If there is a law that can help make less dangerous workplaces, why would you want to get rid of it?” asked Miguel Lagos, 32, a non-union construction worker in Downtown Brooklyn. He then offered an answer to his own question: “Money. Only money.”

In spite of the recent string of worker deaths in the city -- including four in Turtle Bay, two in Brooklyn and one in Soho -- there is a movement afoot to gut what many deem essential protection for workers: Section 240 of the Labor Law. Commonly known as the Scaffold Law, it requires that employers provide proper, functional safety equipment, and facilitates the pursuit of work-related injury cases.

The sides are largely drawn between pro-business, and pro-worker advocates. The former allege that the law puts undue burden on business owners, and negates their right to a fair trial. The latter sees it as a means of keeping employers vigilant on work site safety. Both sides accuse the other of distorting the facts.

Mike Elmendorf, the New York State Director of the National Federation of Independent Business, said “this isn’t about trying to erode protection for workers, it’s about fairness. It’s about an antiquated statute that’s been perverted into a cash machine for trail lawyers.”

His statement expressed a common concern; that business owners are liable to any injured worker, regardless of the circumstances of the accident. “Under this statute,” said Elmendorf, “you could show up to work drunk, go up on a beam, dance a polka, swan dive into the ground, and it isn’t your fault.”

Paul Fernandes, the Chief of Staff at the Building and Construction Trades Council, said that simply isn’t the case.

“The Scaffold law simply says the contractor is absolutely responsible for providing a safe workplace,” said Fernandes. “If you remove that responsibility from the contractor, that gives them a crack that allows them to open the door to unsafe job sites. We have a hard enough time getting compliance as it is.”

Despite what either would have you believe, the law isn’t so black and white. The case history illustrates Section 240’s contentious past.

In a case from 2001, Sergeant v. Murphy Family Trust, D.R. Casey Construction Corp, employed Kevin Sergeant as a roofer. As the court overview described it, “Plaintiff [Sergeant] stepped onto yellow insulation where a roof panel had been removed. The insulation had no underlying support, and plaintiff fell at least 21 feet to the floor below. At the emergency room, a blood test revealed that plaintiff’s blood alcohol level was .27.”

While a .27 blood alcohol level is enough to warrant a drunken driving arrest, it was not enough to throw out the case; Sergeant won the case without it ever being sent to a jury. Because the proper safety devices were not provided, thee defendant was entitled to damages regardless of his intoxication.

In 2003, Blake v. Neighborhood Housing Services of New York, a sober worker, Rupert Blake, was injured while scraping rust from a window. The jury found that all proper safety equipment had been provided in working order, and Blake had only personal negligence to blame. Neighborhood Housing Services was not held liable.

As pro-business advocates point out, adverse economic effects of the Scaffold Law are not limited to lawsuit settlements. According to the NFIB, New York has the second highest cost of doing business in the United States (behind Hawaii), and high rates of insurance are to blame. There’s no consensus, however, on the cause of those high rates.

“The Scaffold Law is driving up the cost of liability insurance and in some cases making it impossible to even secure liability coverage,” said Edelman. “By some estimates, it adds $10,000 to the cost of building a house in upstate New York.”

Ari Gross of Gross & Co. Insurance agreed that premiums for liability insurance can be “prohibitively expensive.”

“I’ve tried to get quotes,” he said, “and the replies were ‘the minimum insurance premium is $50,000.’” That is in contrast to something like painter’s insurance, which Gross said is typically around $3,500.

Although Gross acknowledged that “one claim under the Scaffold Law can be disastrous for an insurance company,” he could not say if the Scaffold Law itself was responsible for the high price of liability insurance.

Paul Fernandes of he Building and Construction Trades Council is sympathetic to contractors coping with high premiums, but believes those who hold the Scaffold Law responsible are misguided.

“There’s a legitimate gripe out there,” he said. “The premiums have been skyrocketing, so I can understand why contractors would go up to Albany and ask for things that they think will reduce their premiums. But, on this issue, there’s been a lot of heat and not too much light.”

Fernandes is looking for hard evidence that the Scaffold Law is, in fact, causing the elevated premiums. “We’ve waited 5-7 years for the insurance industry to provide it,” said Fernandes, “and they can’t provide a single shred.”

While interested parties point fingers, Scaffold Law reform has been a non-starter.

During Elliot Spitzer’s 2006 campaign for Governor, he spoke of a repeal or significant reformation of the law. Elmendorf and the NFIB thought they had an ally in Albany.

But, prior to the prostitution scandal that prompted his premature exit from office, Spitzer did little to address complaints over the Scaffold Law. The opinion of Governor David Paterson, Spitzer’s replacement, is a question mark.

“Obviously, he [Spitzer] is gone, and we don’t know where Governor Paterson stands on this,” said Elmendorf. “Frankly, that’s a point of concern.”

Paul Fernandes, the Chief of Staff at the Building and Construction Trades Council, believes Governor Spitzer himself had no intention of touching the Scaffold Law, and said “I don’t expect it to be a priority for Governor Paterson either.”

Indeed, priorities seem to be working against any reform of the Scaffold Law. In a February 29 press release, New York City Mayor Michael Bloomberg directed the following comment to the Department of Buildings; “I’m expecting you to focus first, last, and always on your most critical and fundamental responsibility – rigorously, thoroughly, and aggressively protecting the lives and safety of our city’s more than 125,000 construction workers.”

Interviews used:
Ari Gross -- 212-620-4040
Mike Elmendorf – 518-434-1262
Paul Fernandes – 212-647-0700
Miguel Lagos – mlagos@gmail.com

Websites:
Bloomberg quote:
http://www.ci.nyc.ny.us/portal/site/nycgov/menuitem.c0935b9a57bb4ef3daf2f1c701c789a0/index.jsp?pageID=mayor_press_release&catID=1194&doc_name=http%3A%2F%2Fwww.ci.nyc.ny.us%2Fhtml%2Fom%2Fhtml%2F2008a%2Fpr073-08.html&cc=unused1978&rc=1194&ndi=1

Brooklyn Scaffold: http://www.ibrooklyn.com/site/newsevents/brooklynprogressonline/42007/article/767

Safe at Any Height: New York’s State Scaffold Law Saves Lives,” New York State Trial Lawyer’s Association (May 2004), Glenn Von Nostitz
http://64.233.167.104/search?q=cache:4GEI3HIcWFcJ:www.law.nyu.edu/realestatecenter/CREUP_Papers/cost_study_2005/chapter13.pdf+Glenn+Von+Nostitz,+%E2%80%9CSafe+at+Any+Height:+New+York+State%E2%80%99s+Scaffold+Law+Saves+Lives,%E2%80%9D+New+York+State+Trial+Lawyer%E2%80%99s+Association+(May+2004)&hl=en&ct=clnk&cd=1&gl=us&client=firefox-a

New York Scaffold Act Claim Costs, American Insurance Association Memorandum: http://72.14.205.104/search?q=cache:4GEI3HIcWFcJ:www.law.nyu.edu/realestatecenter/CREUP_Papers/cost_study_2005/chapter13.pdf+New+York+Scaffold+Act+Claim+Costs,%E2%80%9D+American+Insurance+Association+Memorandum,+November+6,+2001&hl=en&ct=clnk&cd=1&gl=us&client=firefox-a



Lexis Nexis: Legal
Section 240 Overview: http://ezproxy.library.nyu.edu:2076/us/lnacademic/mungo/lexseestat.do?bct=A&risb=21_T3523485680&homeCsi=6320&A=0.5295272357523444&urlEnc=ISO-8859-1&&citeString=N.Y.%20LAB.%20LAW%20240&countryCode=USA

Blake v. Neighborhood Housing: http://ezproxy.library.nyu.edu:2076/us/lnacademic/results/docview/docview.do?risb=21_T3523499537&format=GNBFI&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T3523499540&cisb=22_T3523499539&treeMax=true&treeWidth=0&csi=9096&docNo=1

Sergeant v. Murphy Family Trust:
http://ezproxy.library.nyu.edu:2076/us/lnacademic/mungo/lexseestat.do?bct=A&risb=21_T3523488208&homeCsi=9101&A=0.9322861121618766&urlEnc=ISO-8859-1&&citeString=284%20A.D.2d%20991&countryCode=USA