A Case for Dismantling the Scaffold Laws

Monday, April 28, 2014

In a recent column, Bill Hammond, NY Daily News Columnist, argues that New York's Scaffold Law - which holds building owners liable for construction injuries - is holding back development. He discusses the laws, and other news out of Albany.


Bill Hammond

Comments [7]

Phillip from Long Island

There was a lot of misinformation that went unchallenged today regarding the "scaffold law".
First, the law holds owners and contractors responsible and not employers. In fact employers are shielded by the workers compensation law unless the injured worker sustains a "grave injury".
Second, the courts have recognized defenses for the drunks and and other bad workers referred to. A worker can be found to be the sole proximate cause of his/her injury and get no recovery. A worker who habitually misuses or refuses to use safety equipment can be deemed a recalcitrant worker and denied recovery.
This law imposes strict liability because of a history of hard working people being severely injured due to a lack of safety precautions.
Full disclosure. I am a lawyer and I have represented both sides on this issue.

Apr. 28 2014 01:38 PM
Vanessa H. Merton from New York

One more point: if as your guest said, hundreds of millions of excess cost was incurred because of awards under this law -- how many dead, paralyzed, and brain-dead workers would that represent? Wouldn't we be hearing about a construction fall every 10 minutes to get to those numbers? (Trust me, the life of a construction worker is not very valuable in our system.) Why did it not occur to you to challenge that, to focus more on how many people are hurt and what happens to them? These are horrible accidents: I've only been involved with one, but this poor guy, father of three, wonderful man, died impaled and squirming on the sharp prongs of a wrought-iron fence. But what you mostly wanted to talk about was the "cost". Well, guess what: the real "cost" is not any larger or smaller because of this law. It's only a question of who bears it. When insurance and construction companies pay out money, we recognize that as "cost." When someone dies in torment or can't work or enjoy life for the rest of his life, we call any money associated with that "compensation." Interesting, no? Do you think ONE of those insurance company lawyers who tut-tut over what a sweet generous deal these construction workers have would change places with said worker for ONE MINUTE? What your guest advocates is simply to shift more cost to injured workers, and move cost away from the ones with the lawyers, the ones who make all the profits and control the workplaces. Cost-shifting is not cost reduction.

Finally a much smaller point: the "study". I haven't seen it and you correctly pointed out that its funding source makes it suspect. But again, where is your critical analysis? Did it occur to you to ask the exact time period covered by this study? Did you consider that a study conducted while the economy was a disaster and there was NO construction work for anyone might tend to reflect intense incentives to deter making claims for compensation? People are desperate for jobs. When a comp claim is made, or even more a scaffolding claim, there are consequences. Your name goes on a list. You'll get laid off and you won't get hired by anyone else. The supervisors know, the bosses know, the word gets around. If you still have any hope of working after the accident, mysteriously as an injured "accident prone" complainer, you won't get a job. So yeah, the rates of REPORTED accidents might go down.

There is much more to say but I need to get back to work. I can only hope, with all your influence, your credibility, and your genuine power, you will work on doing a better job of responding critically to the assertions you hear. I've said this to you before: if you would listen to the technique of the BBC World Service reporters, you would see how much more information, and higher quality information, they elicit. No reason you cannot do just as well.

Apr. 28 2014 12:52 PM
Vanessa H. Merton from New York

Brian, please, once again you really need to be more critically analytical about what you are told. If you are going to discuss legal issues, I wish you'd get briefings on them before you go on air. First of all, contrary to your guest's statement -- and as you should have known -- there is no comparative negligence in the law of workplace injury: the system is workers' compensation, explicitly an insurance rather than fault-based system. Workers' comp is a trade-off: pitifully low damages in exchange for not having to prove who was at fault in the traditional personal injury legal system. Why did the workers who accepted what is often described as a terrible bargain -- for them -- do so? Because workers have no access to hot and cold running lawyers, like owners and contractors, and would have no prayer of trying to prove a case in a context where the owner controls all the evidence, all the record-keeping, all the witnesses (who work for him or her) -- oh and there's the small point, the injured worker is either DEAD and not available, or seriously injured, ill, trying to stay alive, coping with all the horror of devastating injury or illness while having NO income and often, no insurance. In that context, do you really think a legal battle with the "very wealthy" real estate industry would be fair or even vaguely viable? But you entirely ignored, as often you do, the issue of no meaningful access to decent, competent, motivated lawyers. The scaffold law is an exception to workers' comp, of course, but the same dynamic applies.

And yes, the same situation obtains for many personal injury victims, such as medical malpractice, which is why we have such a inflated rate of medical malfeasance and other types of unnecessary, avoidable infliction of harm in this country: a combination of our lousy feeble corrupt regulatory schemes and the skewed, pitifully ineffective tort system. Workers got something arguably slightly better in a few areas (although it's still a terrible, rotten system) only because workers, unlike most victims, were able to organize and fight for what the wealthy and powerful are now working overtime to take away from them. And sadly, your presentation of this issue today played right into their hands.

Apr. 28 2014 12:31 PM
BigGuy from Forest Hills

The scaffold law and the costly insurance costs that have resulted has been very effective in preventing accidents.

Allowing contributory negligence at law for employees will REDUCE safety. Nothing makes contractors and developers more safety conscious than paying a lot for insurance and dramatically increasing the possibility of losing money.

In the 19th century, employees were automatically presumed to be 100% contributory negligent, no matter what happened. The spouses and children of employees who were burned alive in fires could not sue their employer because they were presumed to be 100% negligent, no matter what.

The reason fire escapes are on the exterior FRONT of buildings in SOHO and Tribeca is that the fire escapes were put in AFTER the buildings were built after building owners lost lawsuits to wealthy folks, not employees, who sued and won.

Apr. 28 2014 11:44 AM
mick from Inwood

The change would result in legal disputes over who is and how much a party is at fault. The gentleman on the phone might have no proof that his foreman ordered him to work in an unsafe way, only his word against the foreman's. As for the next caller, the idea that a defective piece of equipment would be allowed to remain on the work site, as the caller said, shows that the company was 100% at fault. The law may need reform, but this proposal is another absurd give away to the 1%.

Apr. 28 2014 11:43 AM
Amy from Manhattan

Could Mr. Hammond clarify something? He's been referring to "employers," but the law says bldg. owners have the liability. Where's the contractor in all this? Is it the owner or the contractor who's the employer?

Apr. 28 2014 11:40 AM
Dorothy from Manhattan

Hmmmm. He talks about insurance costs going up but doesn't mention the safety records of the outfits affected. I wonder why.

There's more to this than meets the eye -- There are rich developers behind this. There's always something fishy.

Apr. 28 2014 11:36 AM

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