By Adam Morey
If our elected representatives are truly serious about updating the state’s aging infrastructure, they will need to provide the proper funding – and commit to spending that money wisely. To do that, they must also modernize New York’s archaic construction liability statute, commonly known as the Scaffold Law.
Under the law, courts hold contractors and property owners, including cities and other publicly funded entities like the Thruway Authority, absolutely liable for claims filed for gravity-related construction injuries. This means that a jury cannot consider how the reckless behavior of the injured worker or other employees contributed to the accident.
In the words of former Court of Appeals Judge Robert Smith: “A defendant may be liable to a worker who may have been primarily at fault.”
This absurd, only-in-New York liability standard drives up the price of construction insurance for every project in the state – that is, if contractors can even get insurance. Earlier this year, Habitat for Humanity wrote to the Legislature that the law was a major obstacle to finding coverage for its partner organizations when they came to rebuild after Superstorm Sandy. And this trouble obtaining insurance plagues minority- and women-owned contractors interested in bidding on state projects.
According to the Rockefeller Institute of Government, taxpayers shell out an estimated $785 million annually, while the law has an impact on the private sector that exceeds $1 billon. Public money is wasted on inflated liability costs instead of funding repairs for dilapidated schools or modernizing bridges against extreme weather.
Not surprisingly, data collected from the Port Authority of New York and New Jersey reveals that the agency pays, on average, more than double in losses on the New York side of a bridge compared with the New Jersey side.
First enacted around the time that the Statue of Liberty was arriving in New York Harbor, the law was meant to protect workers when skyscrapers first began to populate the skyline. This was a time before the Occupational Safety and Health Administration and the workers’ compensation system. Now, no matter what the lawyers who profit from keeping this ridiculous law on the books say, the Scaffold Law does nothing to keep employees safe.
In fact, research sponsored by the Transportation Research Board of the National Academies concluded that the law significantly increases both fatal and nonfatal construction accidents.
To sum: There is a liability standard that exists only in this state that is a drain not only on public funds, but the economy as a whole – and has been shown to actually lead to more construction site injuries.
So why hasn’t this law been changed? The reality is, the law is a detriment to everyone except the trial lawyers, but they spend heavily on lobbying and state-level elections each year.
With so much at stake, it is time for the Legislature and Gov. Andrew M. Cuomo to put politics aside and finally fix this legal anomaly, which is long overdue for reform.
Adam Morey is government affairs manager at the Lawsuit Reform Alliance of New York.