By Patrick Connelly, originally published in Buffalo Law Journal, Buffalo Business First on Apr 15, 2019, 2:15pm EDT.

Safety on the job: Scaffold Law continues to be talking point

SPECIAL REPORT: CONSTRUCTION/DEVELOPMENT

Ryan Lema Ryan Lema is a partner at Phillips Lytle LLP.

As part of Ryan Lema’s practice, he finds himself defending businesses in workplace accident cases.

“A lot of those invariably will involve some aspect of the labor law,” said Lema, partner at Phillips Lytle LLP. “Certainly because the Scaffold Law has strict liability on owners and contractors, if there’s any arguable way to frame the case as having an elevation-related hazard or (potentially being caused by) the effects of gravity, plaintiffs will try to shoehorn their case within the scope of the statute.”

The validity of the Scaffold Law continues to be a subject of debate in New York, which is the only remaining state with such a law since 1995 when Illinois abolished it.

The law was enacted in 1885 by the New York Legislature, long before federal workplace safety standards became commonplace in the 1970s.

Under the law, property owners are fully liable when an employee is injured while working in an elevated setting such as on a ladder or scaffold.

“It’s the only law of its kind still in the country,” Lema said. “I don’t think there’s any reason why we couldn’t get rid of it or modify the law so that you could take into account the plaintiff’s comparative negligence.”

Joseph Benedict, executive director of the Buffalo Construction Exchange, has advocated on behalf of Western New York businesses that want to see the law changed. He’s also part of the Scaffold Law Reform Commission.

“It’s really hurting the construction industry,” Benedict said. “Since there’s no defense for it, it really doesn’t serve a purpose.”

Defending plaintiffs protected by the Scaffold Law has become a profitable practice area for attorneys, he said. Lawsuits that arise can give a false perception that safety isn’t a priority at a worksite.

“Just because there’s an injury doesn’t necessarily mean that (the worksite) wasn’t safe,” he said.

Joseph Benedict Joseph Benedict is executive director of the Buffalo Construction Exchange.

Eric Bernhardt, member at Hurwitz & Fine P.C., said there’s confusion about why these injuries aren’t treated the same from a legal standpoint as any other.

“There’s really no evidence that the law makes any job or any workplace safer,” he said.
 
Years of big settlements for plaintiffs have given companies fewer options for insurance providers, he said.

“There’s less insurance available,” Bernhardt said. “Smaller businesses may be priced out of it altogether. … It drives up the cost in New York state without really providing any comparative benefit to the safety of the job site or worker. It needs to go.”

If the law were to change, said Jessica Myers, counsel at Harter Secrest & Emery LLP, the comparative fault standard methodology makes the most sense.

“A comparative fault standard is used in most other contexts for personal injury claims in New York,” Myers said. “If revised accordingly, Scaffold Law litigation would more closely resemble traditional tort litigation in which the parties’ respective degree of fault must be determined and a plaintiff’s damage award reduced accordingly.”

Not everyone wants a change, however, including James Scime, partner at Lipsitz Green Scime Cambria LLP.

“It needs to be the way it is. And I mean that not just from someone who represents injured workers,” he said. “It’s a safety regulation. It’s borne of a correct perception of the legal study around it.”

More often than not, safety changes happen because of the cases, Scime said.

“It puts the onus on owners and general contractors, whether or not they control the work,” he said.

There is no current legislation on the table to reform Scaffold Law.

John McDonald, an assemblyman from Albany County and former mayor of Cohoes, made his voice heard to colleagues and urged Gov. Andrew Cuomo to make Scaffold Law reform a priority.

“It is not something that the majority truly embraces by any stretch of the imagination,” McDonald said.
 
He wants the law modified to take comparative liability into account and he said the first step to reform would be to establish a task force to study what would happen once the law was updated.

“There’s just an opportunity to really have that discussion,” McDonald said.

The reform efforts seen by Myers utilize comparative negligence where an injured worker’s share of fault in causing or contributing to an accident may reduce his or her recoverable damages, she said.

Under the construction law’s current wording, Benedict said many building owners and contractors are left in a bind.

“I think the fact that you can’t do anything about it is what bothers a lot of people,” he said.

Rather than putting safety first, he said parties focus on money.

“The process that you’re going through is really just the process to figure out how much you owe (as a business),” Benedict said. “The process isn’t to figure out whether it’s right or wrong or was it safe or wasn’t it safe. You just get into how much you owe.”

The majority of the backlash when pushing for change comes from coalitions of plaintiffs’ attorneys around the state, McDonald said.

“This is their meat and potatoes. This is what they do,” he said.

A 2014 study by the University at Albany and Cornell University found the law doesn’t keep sites safe and instead costs the public approximately $800 million a year in legal costs and attorney fees.

The study also found that companies in Illinois saw a significant decrease in insurance costs following the repeal. Construction-related fatalities also dropped 26 percent over the five years following repeal in Illinois, according to the U.S. Department of Labor.

“I think the experience in Illinois sort of disproves all of the parade of horribles that you hear from the plaintiffs bar (associations),” Lema said.
 
“Illinois construction work has gotten safer (and) the number of accidents there has gone down.”

Scime said some information distributed by proponents of reform can be misleading.

“I really don’t think there’s a cause-and-effect relationship between whether or not the Scaffold Law gets amended and whether or not it’s going to get easier to be in the construction business in New York state,” he said.

Myers said, though, a reduction in insurance costs may come as a result of decreased exposure to risk.

“This would reduce their cost of doing business in New York and hopefully promote growth and efficiency in the New York construction industry,” Myers said. “It may also usher in more competitiveness in the (state’s) liability insurance market.”

Whether changes to the long-standing law in New York would affect worker safety is anyone’s guess, she said.

“If insurance costs go down significantly for New York owners and businesses with little change … then reform could be a net positive,” she said, “although the impact remains speculative unless and until reforms come to fruition.”