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FAQs About Construction Site Accidents and NY Scaffold Law

The attorneys at the New York City Law Offices of William Cafaro answer questions clients frequently ask about construction site accidents and New York Scaffold Law 240.

What is the Scaffold Law in Terms of NY Construction Site Accidents?

In the late 1800s, a rash of deaths and devastating personal injuries resulted from workers falling from heights or being struck by falling objects in the construction trade in New York City. Life and Limb” in 1885 and was commonly referred to in response to public outrage, the New York legislature passed the “Act for the Protection of as the “Scaffold Law,” The law has been changed many times and has been strengthened over the years, but still exists today.

The Scaffold Law or Labor Law § 240(1))

The Scaffold Law (Labor Law § 240(1)) benefits workers injured on a construction site. Although the Workers’ Compensation Law prohibits workers from suing an employer directly, if the employer’s action or failure to act led to the accident or from suing a co-worker or supervisor of the same employer for negligence, the Scaffold Law makes the building owners, their agents and general contractors liable for injuries workers suffer while performing their jobs.

Your employer will usually have a provision in the contract (or subcontract) with the owner (or with the general contractor if your employer is a subcontractor), called a “hold harmless clause”, which means that if the owner (or general contractor), is found liable because of something your employer did wrong, your employer’s insurance company now comes in to play to contribute to your jury award or settlement.

What is Strict Liability?

Absolute liability means that fault is not an issue and usually, anything that you did wrong does not make a difference in a Labor Law § 240(1) case, unless the accident was entirely your fault. The worker does not have to prove that the owner or contractor was negligent or careless; only that they failed to provide the fall protection required by the statute. That the accident happened because adequate safety devices to prevent the fall or proper safeguards in the hoisting of material or equipment were not provided is usually enough. In most, but not all, instances, a fall from a ladder or scaffold is sufficient to entitle the worker to a verdict or settlement. A fall through an unguarded opening or from any height of more than a few feet is also proof that the necessary safety devices were not provided. Similarly, the fall of material or equipment may also be enough proof that adequate safeguards were not being used. Even falls from as little as three (3′) feet or into a trench or hole at ground or below ground level have qualified workers for absolute liability against the owner or general contractor. Once absolute liability has been determined, the only issue at the trial is determining how much money the insurance company has to pay the victim.

Absolute liability is usually determined through what is called a motion for summary judgment. First, you will have to testify at a deposition, (also called an Examination Before Trial) and answer questions the defense attorney asks you under oath with a court stenographer present. The defense witnesses, your employer and any witnesses favorable to our side must generally all answer our questions under oath. All of the contract documents between the owner, the general contractor and the subcontractor have to be carefully analyzed. This includes blueprints, progress reports, shop drawings, progress photographs and numerous other items we get from the defendants in the course of the lawsuit. In most of these cases, an expert in the particular field of construction or engineering has to be selected and retained. The defense attorneys selected by the insurance company will do the same thing on the other side to try to stop us from winning this motion. It is critical in these cases that this motion be won, because this means that you will not have to prove that anyone did anything wrong at the trial; the only issue at the trial will be what amount of damages the jury should award you.

At the Law Offices of William Cafaro, our attorneys have an excellent track record of winning these motions and we take pride in doing them. Since most of our cases involve damages in the millions of dollars, the insurance companies generally appeal every motion like this that we win. Our attorneys also have an excellent track record of winning these appeals, which ends any issue of whether the case will be won or lost – the only question that then remains is how much money the jury will award to you. In absolute liability cases, winning the motion and the appeal that comes after it is often necessary to end up with and to keep, a large jury verdict.

I was injured on the jobsite, but I didn’t fall from a height. What can I do?

§ 241(6) of the Labor Law protects workers involved in construction, excavation or demolition of buildings. This section reads as follows:

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

The Industrial Code is a set of Rules, (Title 12 NYCRR Subpart 23-1.1 – Subpart 23-1.34 mandated by the New York State Labor Commissioner. This means that if you are a worker involved in the construction, excavation or demolition of a building and you are hurt because of a violation of one of these rules, you generally have a right to sue the owner, the owner’s agent and the general contractor.

The Courts have held that to use this section, that the Industrial Code rule must be one that contains concrete specifications; it might not be good enough if the rule only has general descriptive terms which establish general safety standards, Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, Morris v. Pavarini Const., 9 NY3d 47. For example, 12 NYCRR § 23-1.5(c), which says that “No employer shall….permit an employee to use any machinery or equipment which is not in good repair and in safe working condition,” is a general rule which cannot be used as a basis to sue under Labor Law § 241(6), Mahoney v. Madeira Associates, 32 AD3d 1303. On the other hand, 12 NYCRR § 23-1.7(b)(1), which says that “Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Rule”, was specific enough to cover a worker who fell when a piece of plywood which was covering a hole in the floor slid out from under him, Wells v. British American Development Corp., 2 AD3d 1141.

A Labor Law § 241(6) claim, based on a violation of the industrial code, is not an absolute liability claim.

The facts of each one of these cases are very specific, and these rules can become very complicated, so you should remember that which law firm prepares the presentation of your case makes a big difference in whether the case will be won or lost.

Labor Law § 200 Set Provisions for a Safe Place to Work

You may also have a cause of action for failure to provide a safe place to work under Labor Law §200. Owners and certain contractors who exercise control over the work in which the injury occurred owe a duty to use reasonable care to make workplaces that are under their control, as well as the ways of getting to and from the workplaces, reasonably safe, Pattern Jury Instructions § 2:216. While this is a very useful tool that can work in some cases, there are many exceptions to it and using it successfully takes a great deal of experience.

Sometimes Ordinary Negligence Rules Apply to Construction Site Accident Cases

Because the specific provisions of Labor Law §§ 240(1), 241(6) and § 200 are often very favorable, many plaintiff’s attorneys will just use them and forget the ordinary negligence theories that exist in all cases. We will never do this; we will keep every cause of action alive unless we decide not to use for particular tactical reasons. We won 100% liability in one case on an ordinary negligence theory where the general contractor had left a stud sticking up out of the floor, which the worker tripped on, needing back surgery and knee surgery. One must always be mindful of the fact that the general contractor almost always has responsibility for what is called “general housekeeping” unless the contract documents say something different.

Sometimes it’s good to show the jury a “villain”

Sometimes when we already have “absolute liability” already decided, we will try that part of the case to the jury anyway against another defendant who actually was negligent. This can be very useful in showing the jury a “villain.” Where jurors see that some blatant or obvious neglect caused a catastrophic injury, they can get very mad and a large verdict can result from what we call a “punitive effect.” Even though these are not technically, what is referred to as “punitive damages” they can result in an award for more than what the case would otherwise be worth.

Insurance Companies Now Fight All Labor Law Cases Tooth and Nail

While it used to be that any worker who fell off a ladder and suffered serious injuries was generally offered a large settlement no matter who his attorney was, this is no longer true. While the compensation received by workers who sustain serious injuries from falling from a height can be well into the millions, depending on the amount of the lost earnings claim, the attorney for the injured worker now has a much more challenging job due to new defenses which the Courts have allowed. We are still doing this successfully, but in order to get a good result, you really need lawyers like us who are experienced in this field and know how to avoid the pitfalls and traps for the unwary. You also need lawyers who will give your case the attention it needs, as opposed to lawyers who have hundreds of other cases to handle. At the Law Offices of William Cafaro, we keep our accident caseload very small so we can devote the time to each case that it deserves. The insurance companies not only evaluate your case and your injuries – they evaluate your lawyer. They do this by running verdicts earches which show the track record of every trial lawyer who handles these cases. To you, your case is the most important case in the world, so you should have attorneys who will take it very seriously.

There is nothing more important in the selection of a personal injury trial attorney to handle your accident than the security in knowing your case is being handled by highly skilled and experienced attorneys. The cases reported on this site exemplify the matters handled successfully through trial and appeal by the Law Offices of William Cafaro, an experienced and proven law firm you can trust with your work site accident case.

Law Offices of William Cafaro

 

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