Imagine, for a moment, that you are a small contractor that connects houses to a cable network. To comply with myriad safety regulations and keep your insurance premiums below the point where they'd force you out of business, you conduct weekly safety meetings with your employees.
You develop detailed guidelines, based on OSHA regulations, to insure that all work in which your employees engage is performed in the safest manner possible. Every new employee you hire is made to go through safety training, in which he is shown how to use all the safety equipment you've purchased so he, and your other employees, are not hurt on the job.
One day, when you happen to accompany your workers on a job, you instruct a worker that he must use a ladder to make the cable connection on a particular house, and specifically tell him not to climb onto the house's roof to do the job. You step away for a moment, and the worker promptly climbs onto the roof. The roof collapses, and the worker is killed in the fall. Who's at fault?
If you conduct business in New York or any other of the many states with a "scaffold law," you are. And you have no defense.
Scaffold laws were enacted in most industrial states during the surge of building that took place in the early part of the last century. Legislators, motivated by what was undoubtedly a construction environment that sacrificed safety for profit, had no difficulty making absolutely liable contractors who failed to supply workers with the safety equipment necessary to get the job done without falling to their deaths. The absolute liability was extended to the owners of the property being developed, on the theory that both owner and contractor were in a better position than the workers to see that the work was done safely.
The situations in which contractors have been held liable for worker injuries are truly astounding. A plasterer, after being provided with a safety harness and lift and being fully briefed on their use, moved the lift to a new position in which it was obviously off level and in danger of tipping over. He entered the lift without his safety harness and activated the lift. It tipped over and the worker's pelvis was broken.
A worker on a scaffold had been warned four times to wear his safety harness when performing masonry work. A fifth time, a site safety supervisor instructed him to put the safety harness back on, and stayed to watch and insure that it was done. As soon as the supervisor left, the worker took it off and later that day fell from the scaffold, which caused him to become permanently disabled.
A worker operating a sandblaster was told to use one of the many scaffolds available at a worksite and was specifically told to not use a ladder because there was a strong likelihood that it would tip backward. The worker found a ladder and, contrary to the specific instructions he'd just received, used it instead of one of the scaffolds. After the ladder tipped backward, the worker's bones broken and the lawsuit commenced, the worker testified that he knew that use of the ladder was more dangerous and conceded that he'd been told specifically to use the scaffold and not to use a ladder. Result? The contractor was absolutely liable.
With the advent of nearly universal workers' compensation insurance, private disability insurance, torturously detailed federal and state safety regulations and equally detailed union work rules, is there any purpose in holding contractors absolutely liable for the injuries of even the most recalcitrant workers?
Yes, trial lawyers will tell you. In addition to being paid through workers' compensation for his injury, any diminution in his earning capacity -- and in most cases reaping a supplement from his private or union disability insurance -- an injured worker has a right to soak the contractor that made his employment possible in the first place. What the lawyers won't tell you is that the case based on a scaffold law is the only one in which they'll take a contingency fee.
In the summer of 2001, both houses of the New York state Legislature took up a bill that would inject traditional notions of negligence law -- like the worker's own conduct -- into the scaffold law. Other states are considering similar reforms. Most reasonable people would regard this legislation as nothing more than the recognition that workers are now protected by such things as workers' compensation, disability insurance and safety regulations.
The trial attorneys, however, have come out of the woodwork to stop it. The lawyers argue that the old laws should not be revised because about 95 worker deaths result from falls each year. What they don’t say is that as long as the current scaffold laws remain, they can sue contractors for multimillion-dollar judgments.
Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994. He founded his own New York City firm in 1997, specializing in immigration law and representing new immigrants in civil and criminal matters. He recently left the practice for the "more normal life" of insurance defense. He lives in Bergen County, N.J.