“The greatest enemy of knowledge is not ignorance, it is the illusion of knowledge.”
These words, attributed to Stephen Hawking, find application in various fields. They are particularly applicable to a recent New York Post article entitled “NY’s worst law helps lawyers, kills construction”.
Written by Rev. Jacques DeGraff, the article attacks NY’s “Scaffold Law” – New York Labor Law § 240(1) – as imposing costs that impede construction, increase taxes, and threaten universal pre-K. Its primary antagonists are, predictably, “[g]reedy trial lawyers.”
Unfortunately, in its apparent haste to acquire converts to the Insurance Industrial Complex’s movement to “reform” the law, it blatantly misstates the law.
From the article:
This unfair law makes the contractor and the property owner “absolutely liable” for any gravity-related injury on a construction job site, regardless of fault. Even if the construction company has provided all of the safety training and equipment that the law requires and the injury was caused by employee negligence, the contractor and property owner still bear 100 percent of the cost. The courts don’t even allow evidence to determine fault; a jury is convened only to determine the amount of the settlement.
Where to begin?
The Scaffold Law, Labor Law § 240(1), provides (in relevant part):
All contractors and owners and their agents … in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
Initially, “[n]ot every gravity-related injury” is covered by the law. See, e.g., Carey v. Five Bros.
Furthermore, as recently explained by the court in Montero v. Myrtle Ave. Builders:
Labor Law § 240(1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute. To recover, the plaintiff must have been engaged in a covered activity — the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure — and must have suffered an injury as the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. To impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff’s injuries. Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1).
It is, as such, simply not true that “[e]ven if the construction company has provided all of the safety training and equipment that the law requires and the injury was caused by employee negligence, the contractor and property owner still bear 100 percent of the cost.”
It is likewise not true that “a jury is convened only to determine the amount of the settlement.” Consider, for example, the recent case of Schwarz v. Valente, in which the court ruled on a post-trial motion addressing a jury’s verdict on the issue of liability under Labor Law § 240(1).
My intention here is not to provide a summary of the Scaffold Law – which is the subject of constant judicial interpretation and entire treatises – but rather to illustrate that the Scaffold Law and its application are far more detailed and nuanced than the article suggests.
In sum, if you want to be taken seriously when advocating a change in the law, you should refrain from mischaracterizing the law.