Lawyers, insurance professionals, builders and contractors want desperately to reinforce their message that the New York Scaffold Law increases construction costs, increases insurance premiums and contributes to the decrease of job opportunities so desperately needed in this recovering economy.
These laws (Labor Law 240/241/241-a) were enacted way back in the 19th century and are still active on the state’s books today. Essentially, these laws hold property owners, employers, contractors and their agents (such as their construction managers) “strictly liable” for any “gravity related” risks involving the erection, demolition, repair, alteration, painting, cleaning or pointing of a building or structure. Any fall off a ladder, even at a height of less than one foot off the ground, can result in a claim of enormous consequence. Over the years, the courts have defined “gravity related” to mean the risk of accident due to falling from an “elevated” work surface or being struck by a falling object which was improperly hoisted or inadequately secured from an elevated work surface. Furthermore, an owner or a contractor can still be held liable even if they don’t direct or control any of the work being done. In addition, any negligence on the part of the injured employee is not recognized even if he or she is 100% responsible for the accident that caused the injury.
Traditionally, employees injured “on the job” are compensated through Workers’ Compensation insurance which pays medical expense, lost wages and indemnity. Over the years this has proven to be an effective means of compensating injured workers as well as keeping the cost to their employers within reason. Labor laws, however, prevent recovery solely under Workers’ Compensation because they impose what is known as “strict liability” or “absolute liability.” In cases of strict or absolute liability, the owner is never exempt and Workers’ Compensation is not the only remedy available to an injured party. The only owners exempt from these laws are owners of one and two family homes who contract out for the work to be done. The owner doesn’t actually direct or controls the work being performed. In all other cases, the owner and the contractor are liable even if they are not directing the work being done nor do they control the work being done. Simply put, they have no defenses available to them even if the injured worker is found to be drunk or under the influence of drugs, or refuse to use safety equipment.
The result is that insurance for contractors and building owners in New York has become virtually unaffordable and is becoming more and more difficult to obtain regardless of price.
If you are a contractor, a sub-contractor, a construction manager and/or a building owner, these laws have a tremendous impact on your business. To find out more about how you can protect yourself and your assets, we suggest that you contact your insurance agent without delay. The business you save may be your own!
- Karen Skoler, CPCU