Gallivan Would Alter 'Burdensome' Law State Senator's Scaffold Law Amendment Comes Up Short By Peter Herr

According to State Senator Patrick Gallivan (R-Elma), New York's Scaffold Law is "burdensome" and is in need of amendment. A press release on the Senator's website says, "The law, which exists only in New York, holds property owners and contractors fully liable for workplace accidents, regardless of fault." To correct this, Gallivan and Assemblyman Joe Morelle (D-Irondequoit) have sponsored pieces of legislation to amend the bill by applying a "comparative negligence standard" to the law.

The "Scaffold Law" or NY Labor Law sections 240 and 241 essentially say that contractors and owners are required to provide the proper safety equipment and training for persons working at elevated heights. The law applies a total liability standard: if it is proved the owner and contractor did not provide the proper safety devices, procedures and training, they can be held 100 percent liable for damages sustained by the injured worker. The total liability element is the meat of the law and is what drives owners to demand high safety standards from the contractors they chose.

In Gallivan's statement, he maintains that the law holds contractors and owners liable "regardless of fault," The fact is, the Scaffold Law is only activated in the case where it can be proved the accident happened when the owner and contractor did not provide the proper safety equipment, procedures and training, and that the failure to provide those was the cause of the accident.

If an injured worker decides to use the Scaffold Law as argument, the injured worker must prove the defendant violated the statute by not providing the safety equipment and training. To say that the law decides that all accidents are the fault of the contractor and owner is disingenuous at best.

There are two different defenses of the Scaffold Law. The recalcitrant worker defense offers the owner/contractor the ability to prove that they did, in fact, provide the proper equipment and training, and the worker chose not to use it. The second defense is the sole proximate cause defense. This strategy allows for the accused owner or contractor to prove that the accident was, in fact, 100% the injured worker's fault - like in cases with proven drug use.

Gallivan's amendment to apply comparative negligence to this law only seeks to limit the amount of money that an owner or contractor's insurance has to pay out by shifting some of the blame - and therefore financial liability - to the worker. Proponents of the amendment say this will lower insurance rates; opponents claim that by allowing owners and contractors this ability to limit liability, it will also allow them to take safety shortcuts in the interest of cost savings on job sites.

Gallivan's staff provided an outline of the negatives of the law as currently written. The paper provides three court cases as an example of negative effects of the law. In the first, Kin v. The State of New York, a worker used a ladder without rubber feet and the ladder slipped and fell. In the worker's supervisor's deposition, he admitted that he had not stipulated that those ladders not be used. The fact that the ladders were on site and that the supervisor did not properly train the workers allowed for the Scaffold Law to be used.

The second case, Wilinski v. 334 East 92nd Housing Development Fund Corp, found the worker injured by unsecured pipes overhead that fell on him. The worker did make the supervisor aware of the problem in the morning on the day of the accident, and no safety actions were taken. Securing the pipes would have kept the Scaffold Law from being used.

The final case, Runner v. New York Stock Exchange, involved a worker hurt working a stairwell. A jerry rigged device was used to lower an extremely heavy spool of wire and the device did not perform properly causing the worker to be injured as he was pulled into the device. Had the owner or contractor provided the proper safety device - a pulley or hoist - the Scaffold Law could not have been used.

Gallivan also claims that when Illinois repealed their version of the law, construction jobs in the state grew by 25 percent from 1994-2000. According to Buffalo labor attorney John Feroleto on a recent appearance on Capitol Pressroom, construction jobs grew 29.6 percent.during the same period in NY. Those were, after all, good economic times.

Gallivan's final argument is that liability insurance costs are significantly inflated in NY because of the law. It is also possible that insurers use this law as a reason to raise premiums, and they know that contractors and owners have no choice but to pay the higher rates. While the Scaffold Law does have an economic impact on construction jobs in New York State, the total liability element of the law is what drives safety on the job sites. Removing or limiting that statute will certainly allow contractors and owners to provide less safe job sites, either in equipment or in training of employees, undermining the sole purpose of the law.

The bill's chances in the Democratic-controlled Assembly are slim at best, even with Majority leader Morelle as its champion. It's a change that isn't necessary. All of the claims that Gallivan makes are false, except that companies could save money. Since the tradeoff is worker safety, the bill should be defeated.

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