Legal Intern, Manhattan Institute's Center for Legal Policy
Controversy has re-ignited over a New York law that was enacted in 1882 and is commonly referred to as the "scaffold law." A New York Daily News Columnist penned a piece in which he projected that replacement of the Tappan Zee Bridge would "likely cost hundreds of millions more than necessary" because of various arcane state laws such as the scaffold law, earning him much criticism from the trial bar and labor unions.
Officially found in Labor Law Sec. 240(1) of the New York Code, the scaffold law (as its nickname suggests) was originally meant to protect workers against injuries that occurred in the course of dangerous construction projects taking place high in the air. The scaffold law makes employers absolutely liable for accidents that fall within the law's reach, even when the worker was partially at fault. Over time, courts have consistently broadened the types of injuries covered by the scaffold law:
Historically courts construed the scaffold law to apply only to those "special hazards" that arose from elevation-related risks such as falling from a height, known as the "falling man hazard," or suffering a strike by an improperly hoisted or inadequately secured object, known as the "falling object hazard." [Report by the Renzulli law firm].
The analysis changed dramatically, however, after the 2009 New York Court of Appeals case Runner v. New York Stock Exchange, in which a worker was injured while operating a pulley system that was lowering an object (the worker was not injured by the object itself). The defendants argued that since the worker was neither elevated at the time of injury nor injured by a falling object, the scaffold law should not apply. Amazingly, the court rejected this argument, ruling that the role gravity played in the injury was sufficient to extend the scaffold law's absolute liability protection to the worker. Dismissing the importance of elevation, the court wrote:
The relevant inquiry--one which may be answered in the affirmative even in situations where the object does not fall on the worker [and the worker is not elevated]--is rather whether the harm flows directly from the application of the force of gravity to the object.
A more recent court decision extended the scaffold law even to situations where an object on the same level as the worker injures the worker.
Despite various reform efforts over the years, New York remains the sole state in the country with an absolute liability scaffold law. The most recent reform attempt was introduced this past spring by Democratic Assemblyman Joseph Morelle and others and seeks to replace the law with a comparative negligence standard. Meanwhile, New Yorkers face higher construction costs as a result of the scaffold law:
"The problem with the law is it's so expansive that virtually every accident on the job site is going to result in civil liability," said defense attorney William Greagan of Goldberg Segalla in Albany. "I tell my contractors, if an ambulance comes to your site, you're going to get sued."
The result, according to Michael Elmendorf of the General Contractors Association, is that New York contractors have to pay an extra 30% for their liability insurance.
For the $5 billion Tappan Zee project, that senseless cost equates to a whopping $100 million.