Tearing down the Scaffold Law:
The proposed amendments

(This section was immediately construed as authorizing a civil suit on behalf of the worker.) When the new section 240 (1) was drafted in 1921, however, it no longer put the focus of liability on the furnishing of a defective device; it required the employer to supply such devices as would protect the worker:

A person employing or directing another to perform labor of any kind in the erection, 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 mechanical contrivances which shall be so constructed, placed and operated as to give proper protection to a person so employed or directed.

The changes proposed by Senator Volker, Assemblyman Robach, and others introduce comparative negligence as a defense, and this in itself is a momentous change. But they would go much further, turning the clock back more than a hundred years, to before the 1897 amendment that imposed absolute liability and eliminated the need to prove negligence. Indeed, the amendment, which is a repeal in everything but name, would arm defendants with a prima facie defense that has never been available before; it provides that "compliance with applicable provisions of the Federal Occupational Safety and Health Act and Part 23 of the New York Codes, [sic] Rules and Regulations, as amended, shall be prima facie proof of compliance" with the statute.

Similar language is present in the proposed amendment to Section 241, which also eliminates subsections one through five, the less-frequently cited absolute liability sections. And Section 241-a, which stipulates the protection to be provided around open elevator shafts, would be repealed entirely.

The result of these proposed changes is to assimilate sections 240 and 241, and to put OSHA regulations into the center of construction injury litigation. (Since the Occupational Safety and Health Act contains no specific standards and relies on regulations [29 USC § 655], the proposed amendment's reference to the Act itself will probably be construed as extending to the regulations.) The old Industrial Code, in 23 NYCRR, is pretty much a dead letter, as has become obvious since Ross v Curtis-Palmer (81 NY2d 494) required Section 241 (6) plaintiffs to plead and prove a violation of its rules. Under the proposed Section 241 (6), the plaintiff would still presumably be required to plead at least an OSHA violation to survive a motion to dismiss. This would not be needed in a section 240 complaint, but since most defendants are likely to plead compliance in answers under both sections, the real legal issues would likely be identical.

New York would thus abandon any special concern for elevation-related hazards. Like other construction workers injured on the job, those injured in a fall will continue to have a cause of action against owners and general contractors; but they will now be required to show negligence on the part of the employer or other person directing the work, they will need to refute any contention that the defendant or employer was in compliance with OSHA regulations, and their recovery, if any, will be reduced if they are found to be negligent themselves. Any higher degree of protection will have to come from OSHA.

In all fairness, it must be added that the Volker/Robach bill does maintain the vicarious liability provisions of both sections. These have long been justified because they provide a strong financial disincentive to engaging uninsured or slipshod contractors. The Legislature, in amending the Labor Law in 1969, had stated that the "ultimate responsibility for safety practices*** [should be] on the owners and general contractors" (1969 NY Legis Ann, p. 407). By allowing the worker to sue them, the law ensures recovery; and the owner is able to protect his or her interests by contracting with reliable subcontractors and stipulating that these carry sufficient insurance and indemnify the owner if necessary. (Indemnification clauses are necessary since the legislative abrogation of Dole v Dow Chemical did away with common-law indemnification in this context.) The difference under the proposed law is that the ultimate responsibility of the owner and general contractor is merely to see that OSHA regulations are adhered to.

One can ask what the harm is in these changes. Why should workers injured in a fall recover regardless of their own negligence? Aren't the OSHA regulations sufficient--as OSHA itself concluded, because virtually all construction fatalities could be eliminated by strict adherence to the rules? These are genuine questions, and they are not answered by glib references to worker safety on the one hand or scare tactics about monster jury awards on the other.

The Court of Appeals rejected contributory negligence in 1948 on the theory that the plaintiff's negligence could not be a defense to an action arising from absolute liability. If construction litigation is to be uniformly negligence-based, such a consideration would no longer apply. But there are sound and compelling reasons to maintain the current liability scheme.

Those reasons, which have been cited again and again by courts and the Legislature, include the extraordinary dangers posed by working at a height. The possibility of an accident are greater when one is working on a scaffold, a ladder, or a roof; and so, too, are the consequences of these accidents. While career-ending injuries and even death are sadly not unknown in any industry, the most serious and tragic accidents in construction are those involving falls. Similarly, the consequences of a moment's inattention or slight negligence in attaching a safety belt, placing a ladder or dismounting a scaffold can be far disproportionate to the worker's fault when the result is a fall.

In spite of prevailing wages that may outpace industrial pay, the precariousness of construction work and its minimal organization at the work place leave construction workers among the most vulnerable of employees. Working seasonally, and often for small and short-lived companies, they cannot turn to long-established grievance procedures, safety committees, shop stewards or other avenues to protect their rights. Their bargaining power is minimal when they are ordered to perform dangerous work; and the endless variety of work situations, the threat of bad weather, and the presence of other workers whose tasks may conflict with their own all put construction workers at the peril of hazards not faced by factory workers.

Considering these factors, it is not surprising that judges and lawmakers have tried to ensure that the risks of work at a height are not borne by the worker. As in any part of the law, the pendulum swings back and forth; recent cases, for example, have scrutinized causation in an attempt to limit or focus liability. Some have looked at the "recalcitrant worker" defense, eliminating liability if the worker flatly refuses to use available safety devices. Others, misinterpreting the Court of Appeals's confusing decision in Weininger v Hegedorn & Co. (92 NY2d 875), have withheld summary judgment if there is any question of worker negligence, when that case stands for the unexceptionable proposition that liability will attach unless the worker's own acts are the sole proximate cause of the accident. But all these cases attempt to strike a balance between the interests of the injured worker and that of an owner, general contractor, or indemnifying employer who have tried unsuccessfully to ensure the worker's safety.

Striking a balance is not what the proposed legislation seeks to do. Let there be no mistaking; these amendments will eliminate the Scaffold Law, and with it any special treatment given to construction workers hurt or killed in falls. This is a decision the people of New York have the right to make, but it would reverse more than a century of concern for those who are among the least able to protect themselves from serious injury on the job.

This paper first appeared in the April 9, 2001 edition of the New York Law Journal.

Written contents are © 2001 Andrew V. Siracuse. Design © 1997 Michael Steinberg.