A.1895 NYSTLA Memo in Opposition

February 2, 2009



A.1895 (MORELLE)



AN ACT to amend the civil practice law and rules, in relation to the applicability of certain provisions with respect to persons injured in the use of scaffolding and other devices for use by employees



The New York State Trial Lawyers Association (NYSTLA) strongly opposes this bill which would amend the Civil Practice Law and Rules to provide that damages for personal injury, injury to property or wrongful death pursuant to Labor Law §§240, 241(1)-(5) and 241-a shall be subject to a comparative negligence standard (i.e., damages are diminished in proportion to the amount of negligence attributable to the plaintiff). This bill would provide that comparative negligence would be applicable if safety equipment or devices have been made available and: (i) a person failed to follow safety instruction or safe work practices in accordance with training provided; (ii) failed to utilize provided safety equipment or devices; or (iii) engaged in a criminal act or was impaired by the use of drugs or alcohol, and such failure, act or impairment was a proximate cause of an injury to such person. This bill would take effect immediately.



NYSTLA is concerned that this bill would abolish a long-standing public policy intended to protect workers, it would provide a significant opportunity for abuse by unscrupulous owners and contractors of construction sites, and it is unnecessary due to the availability of the recalcitrant worker defense. First, this bill would undermine the protections of New York's Scaffold Law – one of the most effective and important workplace safety statutes in the Nation. The fundamental premise behind Labor Law §§240, 241 and 241-a is to ensure that safety equipment to protect workers is in place in all circumstances. Labor Law §240 only applies to elevated construction activities and provides that an owner or contractor is strictly liable for injuries resulting from the failure of the owner or contractor to provide the prescribed safety equipment and training. Sections 241(1)-(5) and 241-a similarly relate to safety standards, although generally for non-elevated work sites or elevator shafts and stairwells. In enacting these provisions, the Legislature understood that many deaths and injuries associated with working at elevated construction sites could be avoided by requiring that site owners and contractors provide vital safety equipment which properly protects workers. This bill would allow site owners and contractors to undermine this legislative intent by unfairly shifting the burden of safety from the site owner or contractor, who exercises control of the work site, to the worker, who exercises no control over the work site, and is clearly in a subordinate position. By doing so, this bill would allow site owners and contractors to argue in court that an injured worker was at fault because he or she ignored or did not demand safety devices. This would allow such owners and contractors to avoid their moral and legal obligation to provide workers operating under inherently dangerous conditions with the necessary safety devices.



For instance, an unscrupulous owner or contractor may order a worker to climb a ladder that does not have safety legs or is not secured by another worker. If the worker refuses, he or she will often be sent home, depriving the worker of a day's wages, or fired outright. If the worker complies and is subsequently injured, this bill would encourage the owner or contractor to falsely assert in court that the worker refused to follow proper safety protocols or ignored instructions that were given during a safety course. In order to prove his or her case, the worker would have to present witnesses who either heard or saw the owner or contractor direct the worker to use the ladder without the proper safety equipment or protocols. Further, if a witness is a non-unionized immigrant day-laborer, which is frequently the case in the construction industry, it is unlikely the witness will agree to testify and jeopardize his or her employment or immigration status. Consequently, the injured worker or a decedent's family can be found wholly or partially at fault and denied reasonable compensation, while the owner or contractor can completely or substantially escape liability.



Second, this bill is unnecessary since current statute and court decisions provide substantial protections to owners and contractors. Under Labor Law §§240, 241 and 241-a, an owner or contractor is not held responsible for an accident unless their failure to provide proper safety equipment proximately caused the injury. Accordingly, an owner or contractor can avoid liability under these provisions, no matter why the worker starts to fall, simply by having the proper safety equipment in place. Moreover, the Court of Appeals has repeatedly affirmed the "recalcitrant worker" defense whereby, if a worker's own actions are the sole, proximate cause of an accident that results in his or her injury, there can be no liability.2 As a result, where a jury finds that a worker misuses a ladder which causes his or her injury, the strict liability standard would not apply.3 Similarly, if a worker's drunkenness is the sole cause of a fall, the owner or contractor is not liable under the statute.4



Finally, applying a comparative negligence standard to workers on elevated construction sites already has been tried and rejected by the State Legislature. Between 1962 and 1969, the Scaffold Law did allow for comparative negligence defenses, and it became all too clear to the State Legislature that workers were rendered helpless to protect themselves on job sites. Recognizing that comparative negligence failed to protect workers under these circumstances, the State Legislature and the Governor repealed the comparative negligence defense and shifted the burden back to the owners and contractors who ultimately control the work site.



For the foregoing reasons, NYSTLA strongly opposes this bill and urges the Assembly to reject it.





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1. The Court of Appeals has determined that subsections 1-5 of Labor Law §241 impose absolute liability on an owner or contractor because these five provisions may also involve workers laboring and potentially falling from elevated heights during various stages of construction. In practice, no cases have relied solely upon these sections. When a worker is injured due to insufficient safety devices on the work site, the claim is brought under Labor Law §240, and not §241.



2. Cahill v. Triborough Bridge Authority, 4 NY.3d 289 (2004); Vona v. St. Peter's Hospital of the City of Albany, 223 AD.2d 903 (3rd Dept. 1996).



3. Robinson v. East Medical Center, LP, 2006 NY Slip Op 2457; Blake v. Neighborhood House Services of NYC, Inc., 1 NY.3d 280 (2004); Weininger v. Hagedorn and Co., 91 NY.2d 958 (1998).



4. Haimes v. New York Telephone Co., 46 NY.2d 132 (1978).