By: Thomas H. Welby Thomas H. Welby Published: June 2005

Safety Policy: Fall Protection: A Top Safety Priority (with "Scaffold Law" Update) (Part I)

Pobably no single safety issue is more critical on the New York construction jobsites than that of fall protection.

Outdoor work, and construction work in particular, is dangerous. In 1995, the Bureau of Labor Statistics reported 1,048 construction fatalities, more than any other industry. Its index of relative risk for fatal occupational injuries, using “1” as the overall risk for all occupations, assigned a risk of 8.1 for construction labor overall, and 13.1 to structural sheet metal work. In 2001, construction accidents accounted for 20.8% of U.S. occupational fatalities. Working on a girder, roof or scaffold multiplies the risk factor, and a momentary lapse in judgment can be fatal.

Falls are a primary cause of workplace injuries and fatalities. OSHA estimates that falls cause more than 100,000 injuries and 150 to 200 fatalities at construction sites annually. In 2000, according to the Bureau of Labor Statistics, 32.4% of construction-industry deaths were fall-related. The New York City Department of Buildings reported that, in 2002, falls were the number one cause of construction-related injuries, accounting for 56% of recorded accidents. OSHA’s fall-protection standards, which take up 30 pages in the Code of Federal Regulations, are theones most commonly cited against construction industry employers.

Everyone reading this article is aware of the perennial controversy over efforts to reform (or undermine) New York’s unique “Scaffold Law,” Labor Law § 240(1).

Dating back to 1885, the Scaffold Law is widely thought to be a “strict liability” statute, imposing on owners and general contractors an absolute liability, without any requirement of proving their negligence, for any and all gravity-related construction jobsite injuries.

An argument often made in favor of reforming the Scaffold Law that it is unfair to hold liable an owner or general contractor, who has not been negligent, for the injuries of a worker who may have climbed onto a scaffold while under the influence of alcohol or drugs, who may have shunned the use of safety devices, or was otherwise negligent himself.

It is widely believed, also, that the Scaffold Law is greatly to blame for the limited availability and high cost of liability insurance for New York owners and general contractors.

The insurance industry’s critics allege that insurers have raised premiums chiefly to make up for their diminished returns in the securities markets. They suggest that the insurers have cynically boosted premiums, and (in many cases) have curtailed their business in New York, to pressure construction companies into joining in their tooth-and-nail legislative fight to abolish or weaken the Scaffold Law. Even conceding that high medical costs in New York can only increase damage awards, the refusal by some insurers to cover construction projects in the State is difficult to explain, given New York’s low construction injury rates, which (according to U.S. Department of Labor statistics) were the second lowest in the nation in 1999-2001. It seems likely, also, that New York’s favorable experience is also partly creditable to the Scaffold Law.

A further argument by opponents of changing the Scaffold Law is a widespread, “under-the-radar” sector of small construction outfits, which often lack safety programs, worker training, and even liability or Worker’s Compensation insurance. Apart the fact that OSHA enforcement is aimed mostly at larger companies and projects, some of these “underground” outfits limit their operations to nights and weekends, to avoid safety inspections.

Advocates for both legal and undocumented aliens point out the prevalence in the “underground” construction sector of Latino (and Asian) day laborers, who suffer injury and disability in numbers disproportionate to their participation in the workforce, and who may suffer extraordinary consequences (due to their lack of medical coverage, or undocumented status) if injured or disabled. Several notorious fatal accidents in recent years involved scaffolding collapses and immigrant day laborers.

If the reformers’ argument based on drug-addled and negligent construction workers was not always a straw man, recent caselaw decisions have made it one. In the mid-1980s, it is true, in cases such as Zimmer v. Chemung County Performing Arts Inc. and Bland v. Manocherian the Court of Appeals did define the owners’ and general contractors’ duty as essentially an insurer’s liability. As late as 1993, in Ross v. Curtis-Palmer Hydro-Electric Co., the Court of Appeals was unequivocal that the “negligence, if any, of the injured worker is of no consequence.”

Through the 1990s, however, the pendulum swung considerably rightward, with increasing numbers of cases going to the jury on “proximate cause” grounds (arguably, a back-door reintroduction of comparative negligence) and some courts recognizing an exception to strict liability in the case of the “recalcitrant worker,” one who disregards instructions to use adequate safety devices.

To give just one example of the shift, in Bernal v. City of New York (1995) the plaintiff was being lowered from a scaffold on a “Hi-Lo,” a device not previously used for that purpose. The “Hi-Lo” struck the scaffold, which collapsed, causing injury to the plaintiff. Both the trial court and the Appellate Division held that the plaintiff was not entitled to summary judgment, as a reasonable finder of fact could conclude that the plaintiff’s co-worker’s conduct had been the sole proximate cause of the plaintiff’s injuries. Under the logic of Bernal, a co-worker’s negligence might provide a defense under Labor Law § 240(1), even though the plaintiff’s own negligence is supposed to be irrelevant.

Some stability may emerge following the Court of Appeals’ decision last year in Blake v. Neighborhood Housing Services of New York City, Inc. In that case, the Court of Appeals discussed the history of the statute, and cases employing the terms, “strict” or “absolute” liability. The Scaffold Law is, the Court said, an exception to CPLR 1411, which makes the plaintiff’s contributory negligence a defense. And liability under the Scaffold Law, the Court said in Blake, is “absolute,” in the limited sense that the statute imposes a nondelegable duty on owners and general contractors to provide safe scaffolding. However, the Court emphasized that liability was never intended to be “absolute,” as that term is used in other contexts (e.g., blasting activities and the keeping of wild animals) in which liability is imposed for injury even without fault — where the defendant’s activity violates no law, and is carried out with the utmost care.

Thus, while denying that it was changing the law or constricting the traditionally liberal construction of the Scaffold Law, the Court in Blake stated that the legislative purpose could not be advanced by imposing liability for every fall at a construction site. To impose liability under § 240(1), therefore, there must be proved both a statutory violation of the duty to provide safe scaffolding, and that the violation was a contributing (not necessarily the sole) cause of the plaintiff’s injury.

At least since the Court of Appeals’ clarification of the Scaffold Law in Blake, the worker receiving a windfall from a jury, following his drunken tumble off of a scaffold, is probably a red herring in terms of the reform controversy. Certainly, he would still have to show some defect in the scaffolding — and, were a jury to find that his intoxication was the sole proximate cause of his injury, under Blake’s authoritative (if circular) reasoning, that would necessarily imply that there was no statutory violation.

In Cahill v. Triborough Bridge and Tunnel Authority, also decided in 2004, the Court of Appeals gave its express, if qualified blessing to the “recalcitrant worker” defense, holding that where an employer has made adequate safety devices available and instructed employees in their use, an employee may not recover under the Scaffold Law for injuries caused solely by his violation of those instructions.

Three additional Scaffold Law cases merit passing mention. In LoCicero v. Princeton Restoration, Inc., the Supreme Court, Suffolk County, rejected a defense that a driver delivering rebar mats, injured as a bundle of rebar fell on him as he used a boom crane on his flatbed truck to hoist the bundle to the second floor, was not employed to work on the library addition, and therefore was not a member of the class protected by § 240(1). The decision makes clear that hazards of building materials falling from a hoist, as they are being conveyed to a higher level, are covered by the statute, and an injured plaintiff delivering material to the site may be protected where his work is “necessary and incidental” to the construction project.

Conversely, in Markgraf v. Suffolk County Water Authority, an engineer employed at another location by the lessee of part of the premises under construction fell and was injured as he crossed a plank resting on wood joists. In a reminder that the Scaffold Law does not cover all gravity-related construction-site injuries, in Markgraf the plaintiff could not recover under § 240(1). Where an inspector is a member of a team that undertook an enumerated activity under the construction contract, he is protected even while performing ancillary duties. But where his inspection is “merely investigatory,” and where he is not working for the contractor that is performing or will perform the project, he is not a member of the protected class, and § 240(1) does not apply.

And, while in Hudgins v. City of New York the court on post-trial motions put a somewhat startling jury verdict aright, in that case the plaintiff sustained injuries when planking he was standing on, which had been placed atop a 25-foot high sidewalk bridge, was struck by a passing vehicle, causing the planking (and a section of the bridge) to collapse. At trial, the plaintiff won a verdict as to the liability of co-defendant City of New York (whose driver operated the truck that struck the planking) and a substantial damage award.

What is startling about Hudgins is that the jury apportioned liability 90% against the City, and 10% against the plaintiff (and presumably was instructed by the trial judge on comparative negligence). On a post-trial motion, the court hastened to correct this error, holding that the plaintiff’s comparative fault was irrelevant, and would not defeat his right to full compensation. As contributory negligence in Scaffold Law cases was abolished by the Court of Appeals in Koenig v. Patrick Construction Corp. in 1948, the error at trial was an egregious one.

What are the implications for New York construction companies of recent developments, and in particular Blake? While the ingredients that go into policy, like those of sausages, cannot be reliably foreseen, possibly gasbags on both sides of the dispute will see their arguments deflated. While Blake dealt plaintiffs’ trial lawyers a clear defeat, the insurers lost one of their principal arguments. It should be hard for them to argue in the future that it is “impossible” for insurers to defend against “absolute” (insurer’s) liability under the Scaffold Law, now that the Court of Appeals has said in Blake that “at no time did the Court or the Legislature ever suggest that a defendant should be treated as an insurer after having furnished a safe workplace.”

Even its detractors have not attacked the Scaffold Law’s vicarious liability provisions, as they are generally agreed to be a salutary disincentive to hire uninsured or slipshod contractors. Possibly, the controversy over the Scaffold Law will soon be narrowed to whether construction workers falling off scaffolds should be subject to comparative negligence standards like everybody else.

New York’s position as a leader in construction industry safety (and, yes, Democratic control in the Assembly) suggests that our system is not “broke” sufficiently to impel the Legislature to make OSHA compliance a prima facie defense under the Labor Law. In combination with the dawning recognition that drastic reform is not in the cards for the short term, New York’s admirable safety experience may soon get the insurers off the sidelines, with the result (we hope) that insurance will become more widely available, and at more favorable rates.

Continuing on this theme in next month’s article, we will discuss fall protection from an OSHA compliance standpoint, and look at how cases before the OSH Review Commission and U.S. Courts of Appeals have dealt with violations.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

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