Once again, common sense is trying to rear its head in the New York State Legislature. And not just common sense, but any rational conception of justice, which today is denied to many contractors when a worker is injured.
Under the guise of protecting workers, New York’s Scaffold Law is instead a sop to trial lawyers who can get a free payday when a construction worker is injured. The law may speed up lawsuits filed by injured workers, but it does so at the expense of contractors and property owners who, in virtually every case of a fall or injury related to gravity, are prohibited from defending themselves in a lawsuit. This despite the fact that injured workers remain eligible for workers’ compensation benefits while a lawsuit is pending.
The law also penalizes virtually anyone who pays for construction in New York State, a huge group that includes taxpayers who underwrite big public projects and homeowners who need a new roof. The reason: Insurance costs in New York are massively higher than in states without this law – which, as it happens, are the other 49 states – because insurers know they will be unable to mount a defense showing that perhaps the worker contributed in some measure to his own injury.
Unless the injured worker can somehow be shown to be 100 percent at fault, the contractor or property owner is presumed by law to be liable and prohibited from contending otherwise. They are muzzled – denied the fundamental right to defend themselves.
It’s a shocking and intolerable deviation from any recognizable concept of justice, yet it is one that the New York State Legislature clings to like a child to its mother. The only possible reason is to please the powerful trial lawyers lobby. There is no other justification.
There was at least a reason for the law when it was enacted in the 19th century. Then, contractors cared little for their workers’ safety. In response, the Legislature gave them a financial reason to care. But since then, under such influences as the federal Occupational Safety and Health Administration, worker safety practices have dramatically improved.
There is no evidence that the Scaffold Law makes construction workers in New York safer than those in any other state, and, indeed, a Buffalo News review of statistics in 2001 showed that New York’s incidence of injuries caused by falls was around the national rate for the years 1994 through 1997. Its record was much worse than the national rate in 1998 and much better than that figure in 1999. Those figures clearly show that the Scaffold Law does nothing of note to make the state any safer for construction workers than other states.
Among its other virtues, reforming this law can be a catalyst for economic development. After Illinois scrapped its law 18 years ago, construction industry employment grew by 23 percent over 11 years, critics of the law note. With less money spent on insurance, more was available for work. Insurance companies, many of which refuse to take part in New York’s rigged system, are backing reform.
An array of groups is seeking, once again, to reform this law. Instead of outright repeal, they are proposing to allow a comparative negligence standard in situations where an injury is found to have been caused by that worker’s failure to follow safety training or use available safety devices, intoxication or commission of a crime.
A Senate bill has been introduced by Sen. Patrick M. Gallivan, R-Elma, and a companion bill, sponsored by Assemblyman Joseph D. Morelle, D-Rochester, is pending in the Assembly. The Legislature should approve this modest change and Gov. Andrew M. Cuomo should sign it.
Lawyers and other defenders of this judicial travesty will claim that changing this law is an attack on workers and their safety. It’s not true. Injured workers will still be able to sue and to be compensated for injuries. The difference is that contractors and property owners will also be able to have their day in court, a fundamental right that this antiquated law denies.