ALBANY—Hundreds of advocates from both the public and private sector are urging Governor Cuomo and legislators to take action and reform the unfair absolute liability standard of century-old Scaffold Law. That provision of the Scaffold Law drives up to cost of every public and private construction project in New York because building owners and contractors are held “absolutely liable” for “elevation related injuries,” regardless of the facts of the case, or the real liability for the injury. Scaffold Law Reform advocates are supporting bi-partisan legislation sponsored by Assembly Majority Leader Joseph Morelle and Senator Patrick Gallivan (A.3104/S.111).
On Tuesday, February 12th advocates ascended on the State Capitol in Albany for a Scaffold Law Reform Advocacy Day to meet with elected officials and voice their support for rational reform to the Scaffold Law.
The Scaffold Law is an anachronism that continues to exist at the expense not only of the construction industry, but also the economy, state and local governments, school districts, small businesses, farmers and taxpayers. Public projects, like upcoming the Tappan Zee Bridge rebuild, cost more in New York due to the absolute liability standard, severely limiting New York's ability to keep infrastructure safe and rebuild effectively after events like Superstorm Sandy.
New York remains the only state in the nation with such an absolute liability standard. A comparative market analysis demonstrates that insurance costs on public and privately financed construction projects would be significantly lower with scaffold law reform. New York's Scaffold Law predates the Occupational Safety and Health Administration, Workers' Compensation Law, state regulations, local laws, and construction industry best practices that provide rigorous safety protections to workers.
New York's general liability insurance market is in crisis mode. The absolute liability standard and threat of large cash awards to plaintiffs has limited the number of insurance companies willing to provide general liability and reinsurance policies in New York. The insurance marketplace is under duress, with carriers passing along increases ranging from 20% to 400%. Such increases are then passed on to the consumer and drive up the cost on every construction project, be it a house, a bridge, a school, a barn or a high-rise building. In many cases, the only insurance market open to contractors and subcontractors is the non-admitted lines, where exclusions for scaffold law related claims are not uncommon.
The Scaffold Law also has a destructive impact on minority and women owned (M/WBE) contractors. Governor Cuomo has recently increased the state's target for M/WBE involvement in state projects, but advocates argue that the scaffold law disproportionately affects M/WBEs who are generally smaller and cannot afford the insurance costs, or could be quickly bankrupted by a large settlement. Scaffold law reform would accelerate more business opportunities for M/WBE firms.
“As a smaller women-owned business, I cannot shoulder the same insurance costs as the bigger firms. It seems that every year my insurance is increasing and because of the absolute liability standard there is little I can do to protect myself or my business,” said Christine Boccia, Donaldson Traditional Interiors & lobby day attendee
“This is not just a contractor issue. Labor Law 240 adds to the cost of every building or repair project in New York. Schools, municipalities and the state itself are often the target of these lawsuits. Public projects like the Tappan Zee will cost more if we do not reform the Scaffold Law," said Lawsuit Reform Alliance of New York Executive Director, Tom Stebbins.
"A vast majority of New Yorkers do not understand the impact that this outdated law has on their personal finances. The Scaffold Law increases insurance rates, has an impact on job creation and adds a significant cost to both residential and commercial construction. If New York State is serious about rebuilding the state's economy, reforming New York's outdated and costly Scaffold Law is essential," said Barry Fries, President of B.R. Fries and Associates of New York, NY
“New York is the only state to have a Scaffold Law in place, despite the fact that it drives up insurance and building costs across the state, hurting municipalities to the tune of more than a billion dollars each year,” said Heather Briccetti, president and CEO of The Business Council of New York State, Inc. “The skyrocketing cost of litigation, the senseless mandate which allows workers to collect even if they're drunk or violating safety regulations and the struggling economy demand that the legislature act now and rewrite the Scaffold law.” said Heather Briccetti, President and CEO of the Business Council of New York State
"Reforming the Scaffold Law by giving contractors and others their day in court--where actual liability can be determined--will reduce the cost of construction, create jobs and promote greater workplace safety. At the same time that New York struggles with staggering infrastructure needs we cannot afford, we continue to perpetuate a flawed law that unnecessarily drives up those costs. There is no excuse for New York to remain the only state in the nation with such an antiquated and indefensible law on the books. The time for reform is now," said Mike Elmendorf, President and CEO of the Associated General Contractors of New York State (AGC NYS).
Scaffold Law Reform advocates are supporting legislation sponsored by Assembly Majority Leader Joseph Morelle and Senator Patrick Gallivan (A.3104/S.111). This bill amends the Civil Practice Law and Rules to add a new Section 1414. This section applies a comparative negligence standard as provided for in CPLR 1411 with respect to actions for personal injury, property damage or wrongful death arising under Labor Law Sections 240 to the extent the conduct relates to the following: a criminal act, use of drugs or alcohol, failure of the employee to use safety devices furnished at the job site, failure to comply with employer instructions regarding the use of safety devices at the job site, or failure of the employee to comply with safe work practices in accord with safety training programs provided by the employer.