Central New York Injury Lawyer Blog

I read in the New York Law Journal today that a coalition of business groups has formed to once again attack Labor Law §240, known as the "Scaffold Law", and its sister Statute, Labor Law §241. The Scaffold Law has, in my humble opinion as a Central and Syracuse New York construction accident lawyer, saved countless lives in New York by holding employers and owners of construction sites responsible for workers' falls from scaffolds (among other things). The other Statute, Labor Law §241, provides additional protection, not only from falls, but for many other types of common construction "accidents" (I put "accidents" in quotes because most of them are not true accidents, but rather the result of employers and others encouraging or allowing their workers to cut corners on safety).

The "new" coalition is made up of the usual suspects: The Business Council of the State of New York, the Associated General Contractors of New York State, Unshackle Upstate, and the New York State Builders Association. These guys get together every five years or so to take another whack at our dear Labor Law, so far, thank God, without success! If at first you don't succeed, try, try, try . . .. Well, you know.

According to the article, the new coalition's leaders believe Governor Andrew Cuomo's administration may be more "business-friendly" than his predecessors', and that the time is right for delivering a knock-out blow to these safe construction-work statutes. And they may be right! But even if they are "right", what they are doing is wrong. They are putting profits over safety, and in my book, and I hope in Mr. Cuomo's, that's like finger nails on a blackboard.

My advice to Governor Cuomo: Hey --- there's nothing wrong with being a "friend" of business, but being a "friend" of safe work practices is even better. Put safety first, Gov. Thanks for listening.

You can read my prior blog posts about Labor Law 240 (the "scaffold law") here:

Syracuse New York Construction Accident Lawyer Looks Up And Sees Labor Laws Being Broken!

Can I Be Sued If Someone I Hire To Remove Snow And Ice From My Roof Or Fix My Leaky Roof Falls? Central And Syracuse NY Personal Injury Lawyer Explains.

"Worker in Geneva New York Who Fell from Scaffold Probably Has a Slam Dunk Case against Wal-Mart", Geneva New York Injured Worker Lawyer Says.

Central New York Construction Accident Lawyer: Construction Workers Injured in Binghamton New York Scaffolding Collapse Have Solid Case

OSHA'S Increased Construction Site Safety Enforcement in Syracuse and Central New York May Help Decrease Syracuse New York Falling Construction Worker Lawsuits.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

This story just kills me. The Syracuse Post Standard reports that a construction worker repairing the roof of Tully High School fell from the roof this morning while members of the high school's girls cross-country team stood by and witnessed it. I feel terrible for the injured worker, but also for those poor kids who witnessed the tragedy.

And it was an avoidable tragedy. The law was not followed. I'll tell you more about that later, but first let me say that, in my experience as a Syracuse construction work accident lawyer, most fallen roofer injuries are serious, and life-long. Because the injuries from falls are so serious, New York has a special law to protect construction workers on rooftops and scaffolds. It's called Labor Law 240, or "the scaffold law".

Tully School District will almost certainly be held liable to the fallen roof-repair man. Why? Because under New York Labor Law 240, the owner of a building is, in almost all circumstances, strictly liable for all worker falls from the building's roof. The roof repair man should have been tied up with a lanyard or some other safety device, and apparently he was not. This is, generally, a clear cut violation of Labor Law 240.

The fallen worker will be entitled to workers' compensation through his employer, but also entitled to full compensation from the School District for all additional lost wages, past and future, as well as any additional medical expenses, and pain and suffering compensation. Tully School District, call your insurance carrier! Tully School District insurance carrier, call your lawyers! Fallen worker or his family, call a New York construction accident lawyer!

Other related blog posts:

Syracuse New York Construction Accident Lawyer Looks Up And Sees Labor Laws Being Broken!

Can I Be Sued If Someone I Hire To Remove Snow And Ice From My Roof Or Fix My Leaky Roof Falls? Central And Syracuse NY Personal Injury Lawyer Explains.

"Worker in Geneva New York Who Fell from Scaffold Probably Has a Slam Dunk Case against Wal-Mart", Geneva New York Injured Worker Lawyer Says.

Central New York Construction Accident Lawyer: Construction Workers Injured in Binghamton New York Scaffolding Collapse Have Solid Case

OSHA'S Increased Construction Site Safety Enforcement in Syracuse and Central New York May Help Decrease Syracuse New York Falling Construction Worker Lawsuits.

Keep safe!

You can email me at bersani@michaels-smolak.com

Mike Bersani

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY construction accident lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

When I was a college student, I used to paint houses in the summer to make a few bucks. I was fearless then. I would climb way up high on extension ladders and paint the peaks of three-story homes. And I would climb on roofs, lie down and dangle my head over the edge, and paint the eeves. Nothing was holding me to the roof except gravity and guts. I was in my 20's and I did not think I could ever die, or even get injured. And work was plentiful. Homeowners readily hired me because I had a reputation for doing a good job on the cheap.

Now, much older, wiser, and having represented too many fallen workers in my job as a Central New York and Syracuse construction accident lawyer, I dare not climb a ladder even to clean my own gutters. Being a Central New York construction accident lawyer has its downside - I have lost my nerve. I take six steps up the ladder, my mind's eye sees three or four clients who fell when the ladder they were on toppled, or when they lost their grip, I then think of how my family will fare without a breadwinner, and before you know it, I have backed my way down the ladder to the safety of mother earth.

My house needs painting. Even though I have painted over 50 houses in the day, I am not going to paint mine. I would much rather represent fallen workers than be one.

I want to hire a reputable painting company. I don't want some inexperienced fly-by-night kid (like I was!) climbing up on my roof and courting death or serious injury. Am I worried about getting sued? No. That's because I know that under the New York Labor Law, a homeowner is protected from liability for falling workers. Generally, only owners of buildings with a commercial purpose can be held liable for injuries suffered by a worker who falls from the building.

I want to hire a company of professional painters. A good professional painting company will follow proper ladder and scaffold safety rules, which includes tying the ladder down both from the bottom and the top, and using secure scaffolding whenever possible.

Yes, real professional painters are a bit more expensive than daredevil college kids. But life is too valuable to risk it.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

Take a drive around Central New York in this nice springtime weather and you'll probably see workers up on ladders and roofs, repairing roofs, gutters or doing other types of construction work. But you probably don't look at construction work the same way I do. As a Syracuse New York construction accident lawyer, I see laws being broken! The workers are not breaking the law, but the contractors who hire them and the owners of the buildings they are working on are.

Under New York's Labor Law and Federal law (OSHA), construction workers working from heights are required to be tied up with a full-body harness attached to a shock-absorbing lanyard or a retractable lifeline. A lanyard or lifeline stops the worker from hitting the ground - instead his fall is arrested on the way down. And because lanyards and lifelines are made to absorb shock, the gravitational forces on the body are minimized. The full-body harness then distributes the remaining gravitational forces of the fall throughout the entire body so as minimize the risk of strain or injury to any part of the body.

The contractor and owner of the building are also supposed to ensure that the ladders workers use to get up to the heights they are working from are tied down, both at the bottom and the top.

Despite these laws, over and over again I see painters, roofers and other workers on rooftops and ladders with no fall protection at all. They are working from untied ladders, and strolling around on rooftops free as birds - but without the benefit of wings!

Here's just one blatant example: Last summer as I walked from my office to the Auburn Y for a workout, I observed about a dozen workers way up on the Y's 5-story tall roof, walking around without any lanyards or harnesses, and no fall protection at all. At that time, I happened to be Chair of the Auburn Y Board, so I immediately told our Executive Director, who then called the roofing contractor to complain that the workers were not abiding by New York Labor Law. The next day all the workers were safely tied up.

Why did I bother reporting this? If those guys want to risk their lives it's their own business, right? Wrong.

First, I care about them. As a Central and Syracuse New York work accident lawyer, I have represented too many fallen workers, and too many of their widows, in New York construction accident cases. I have seen devastating fall-related injuries, and death, close up.

Second, under New York Labor Law 240, the general contractor and owner of the building (and sometimes others, too) are all liable to a worker (or his surviving family) who is injured or killed because he was not provided with fall protection devices (tied-down ladders, lanyards, lifelines, harnesses, etc.). So by insisting that these workers use proper fall prevention devices, I was actually doing my duty as Board Chair in protecting the Y's assets.

Construction workers, Keep safe! Tie yourselves, and your ladders, up! But if you don't because you are not instructed to do so, or because no fall prevention devices were made available to you, and you fall and are injured, call me --- you will almost certainly have a very strong New York falling worker case against, at the very least, the general contractor and owner of the building.

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

A web article I stumbled upon jumped off my computer screen at me today. It was titled "Plaintiffs lawyers eyeing Marcellus Shale Work." My first thought: "Gee, I am a New York personal injury lawyer located right in the Marcellus Shale zone, so how come I am not 'eyeing' the future Marcellus Shall Work". Next thought: "Hey, that hydrofracking work will be dangerous, workers will get hurt, they will need New York personal injury lawyers to represent them, so gosh, maybe I should be 'eyeing' the Marcellus shale work". Next thought: "Don't want people getting hurt, and besides, it's going to be messy for our environment up here, so thanks but no thanks".

All those thoughts streamed through my brain in about 3 seconds, before I even got to the first word of the article. Then I read it. A personal injury lawyer out of Pennsylvania somewhere was quoted as saying that the Marcellus Shale drilling would cause "horrendous injuries" because of all the gas and liquid under high pressure carried through pipelines, stored in big tanks, and ejected underground at high pressure. Drill rigs are notoriously dangerous. Toxic gas leaks burn workers and gas rigs explode. Big tanker trucks cause motor vehicle accidents on narrow local roadways.

OMG! Parade of horribles. Well, he convinced me: the Shale gas drilling, or "hydrofracking" as it's called, if it ever happens up here, will be good for the personal injury law business. Unfortunately, it probably will, if it goes forward, produce a fair number of serious injuries and deaths. And I am sure that many of the injured and the families of the dead will find their way to our law office since we are well regarded in the personal injury field and, I believe, the only law firm located in our area of the Finger Lakes that limits its practices almost exclusively to New York personal injury cases.

Still, I can't get myself to start "eyeing" future shale drilling, as if it were some kind of delicious dessert. We have enough injuries and wrongful deaths up here already to keep us busy and make a living. And we love the beauty of the area. Hydrofracking will foul our water, and mess up our pristine land and lake-scape. Some things just aren't worth the money . . .

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

These winter days of snow-caked rooftops, there are lots of folks are up on roofs with chisels, hammers and shovels trying to dislodge ice and clear off snow. And for a good reason; all that snow and ice buildup can damage the roof, and can even cause the roof to collapse! That's pretty dangerous, but being up there on the snow-and-ice capped roof, if you don't know what you are doing, isn't so safe either. Quick advice from this Central and Syracuse New York personal injury lawyer: Don't do it yourself unless you know what you are doing. Hire a contractor or roofer instead.

But wait a minute. If you do hire someone to do it for you, and he falls off your roof and is injured or dies, can he, or his family, sue you?

Before I tell you the answer, let me give you some law. New York has a special law, called New York Labor Law 240, which provides that workers may bring a lawsuit against the "owner" of a building (among others) if the workers fall and are injured while engaged in either "cleaning" or "repair" work (among other things). Clearing snow and ice off a roof has been held to be a "cleaning" activity, and of course fixing a leak is a "repair" activity, so if someone falls from your roof while doing either of those things, you, the homeowner, would, at first glance, seem to be liable for the injuries sustained by the fallen worker.

But wait! There's an exception that saves you, the homeowner, from having to lose sleep over the possibility that Joe the Roofer might sue you for his injuries when he falls from your roof. What is it? Drum roll please . . . .

Labor Law 240 provides that the owner of a non-commercial one or two-family dwelling (i.e., a "home") is not liable for the roofer's injuries as long as the homeowner did not "direct or control" the work. In other words, you can go ahead and hire a contractor or roofer to get that snow and ice off your roof, or to fix that leaky roof, as long as you don't tell or show him how to do it. To be safe, you'd be better off not even lending him the equipment to do it. Let him "direct and control" himself. And let him get his own stuff to do it.

As you can imagine, falls from roofs can cause very serious injuries, some of which are compensable by millions of dollars. Take it from me; my law firm and I have successfully won millions for workers who have fallen from roofs. We have never sued a homeowner on behalf of a fallen worker, though. Why not? As I already told you, they are generally immune from liability (unless they micro-manage the job). We usually sue these cases out against industrial or commercial owners of property and against the general contractor of construction projects.

So don't worry, be happy! I'm not going to sue you on behalf of that roofer or contractor you hire to get rid of that ice or snow or fix your leaky roof! But if you are someone, or know someone, who fell from a roof while clearing snow or ice or while repairing a leak, especially on a commercial building, do call, or have him or her call me.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.

Posted by Michael Bersani | Permalink | Email This Post

Posted In: Construction Accidents , Premises Liability

My last blog was about ADR (Alternative Dispute Resolution), such as mediation and arbitration, which is, to a certain extent, replacing jury trials as a way to resolve personal injury lawsuits in Syracuse, Central New York, and, in fact, just about everywhere else. Here's a recent example of how ADR works from my own case load.

I am scheduled to try a Syracuse fall-from-scaffold lawsuit in about 3 weeks. Meanwhile, the defendant's insurance carrier has invited me to try to settle the case through "mediation" first. After I explained how this works, my client agreed to it, and we will be at the mediation table in about a week. If we don't settle at the mediation, I will have only a few weeks to prepare my trial, which is not enough time. I really need 6 weeks! So I am already preparing my exhibits, my direct examinations, my cross-examinations, etc., in case I need to try this Syracuse construction accident lawsuit.

The case may or may not settle at mediation. Much of that depends on how reasonable the insurance carrier will be. If the case settles in mediation, I won't feel bad about having spent so much time preparing for trial. I always learn by preparing for trial. It makes me a better lawyer.

In preparing to try this case, I have become a kind of "expert" on lumbar (lower back) injuries, which is what my client suffered when he fell from a scaffold at work and landed on his feet. I have even ordered large "blowups" of my client's x-rays and MRI's so his doctors can vividly explain his injuries to the jury. I have also hired a medical illustrator to create illustrations of the surgery my client endured as a result of his accident.

Even if I don't try this case, the medical knowledge I gained in preparing for trial will help me in other cases, since lumbar spine injuries are very common injuries in falls from scaffolds cases, car accident cases, and other types of traumatic injury cases.

My father always said, "there is no such thing as useless knowledge". As usual, he was right.

My hometown newspaper, the Geneva Finger Lakes Times, reports today that a Florida man working for a subcontractor on the Wal-Mart "Super Center" expansion in the Town of Geneva, New York, fell from a scaffold, suffered shoulder and wrist injuries, and was then Merrcy Flight-flown to Strong Memorial Hospital in Rochester. The worker had been working at the ceiling level when he and the scaffold both fell over. OSHA is investigating.

No matter what OSHA decides, though, I can tell you with almost absolute certainty, from my years of handling New York falling scaffold injury cases, that the injured worker has a "slam dunk" New York worksite accident case against the owner of the building where he fell, Wal-Mart, as well as against whoever the general contractor on the job was. This is because of a special New York law, called the "scaffold law" (Labor Law 240[1]), specifically designed to help victims of unsecure scaffolds and ladders get full compensation for their injuries from both the owner of the building and the general contractor on the job. You can read my prior posts on this topic by clicking here and here.

I blogged just the other day about the Syracuse construction workers, employed by Apple Roofing, who were injured when a scaffold collapsed, bringing them down with it, at Binghamton University dormitory under construction. I talked about how New York's special "Scaffold Law" (Labor Law 240) makes the Owner of the construction site (New York State and perhaps the New York Dormitory Authority) and the general contractor (LeChase Construction)on the job automatically liable for the fall and injuries.

Here I want to talk about how a smart New York construction accident lawyer would handle this case. He or she would get this case to a judge ASAP to rule that the Scaffold Law applies, and that the defendants are therefore automatically liable for the injuries! (You can do this through a procedure known as a "summary judgment motion"). Why the rush? Because once you establish, under New York law, that these guys are liable, 9% annual interest starts running on the money the injured construction workers are owed for their injuries. Now that's a lot of interest in today's weak economy. Try getting that on Wall Street today!

After "liability" is established on "summary judgment", which is a no-brainer in this case, and interest starts running, getting the case to a jury on the remaining issues of medical expenses, lost income, and pain and suffering compensation, will take some time. In fact, you have to wait to see how well the injured worker heals before you even know how much to ask a jury for. But now at least you have interest running. The money is in the bank, and is cooking up 9% interest a year!

I have seen too many lawyers wait too long before getting a ruling on liability. They thus give up all that interest. They think they have to wait for a lot of "depositions" to be taken before they can get the ruling. But in a case like this one, with such clear liability, there should be no need for that. Get that liability ruling, and get it fast. Get that interest running! Then, when you eventually get your money verdict, the judge will tag onto it all that interest that has been running at 9% annually since the date liability was granted. Believe me; all that interest tagged on can make a huge difference in the ultimate money verdict for the injured construction worker!

Scaffolding has only one purpose: To hold workers up safely while they work. And when it doesn't do that, very bad things happen. I'm talking big injuries, or even death. That's why, for generations, New York State has recognized the importance of having an iron-tight law to protect construction workers from the severe injuries, or death, caused by falls from scaffolds.

The Binghamton New York scaffold collapse, which injured six construction workers yesterday, is a prime example of how important New York's "scaffold law" (Labor Law 240) is. The scaffolding had been erected at Binghamton University on the side of a dormitory under construction. It had not been up even 24 hours when it collapsed, taking six construction workers down with it. I can guaranty you that workers' compensation will never be enough to fully compensate these injured construction workers. That's why Labor Law 240, the "Scaffold Law", is so handy for New York construction and scaffolding accident lawyers like me. This Statute makes it easy to get full and fair compensation for the victims of collapsing scaffolds.

The "Scaffold Law" says that the owner and general contractor (and sometimes others) of the construction project are AUTOMATICALLY liable (New York scaffold lawyers say "strictly liable") to injured construction workers who fall from scaffolds. If the scaffold failed to do its job of holding the workers up safely, then they are liable, period. No excuses. No stories. No shifting the blame to others. (Well, there are a few exceptions, but I can't see any that would be applicable on the facts of this case).

No explanation for the collapse has been given. But, to a New York construction accident lawyer, it doesn't really matter. The owner and general contractor are liable to the injured construction workers regardless of why the scaffold fell.

So the State of New York, the owner, and LeChase Construction, the general contractor, are probably already setting aside money to pay these construction workers when the inevitable Binghamton work place accident lawsuit gets filed. And that's a good thing. The injured construction workers and their families will need it.

Construction season is in high gear again, and that, of course, means more construction accidents. Yesterday the Syracuse Post Standard reported that a construction worker fell into a 12-foot hole, which was to be the foundation for a new single-family home, on a construction site job on Seymour Street. The worker apparently suffered some kind of head injury.

I wish this worker a speedy recovery. But when I read cases like this one, and after I feel sorry for the victim, I can't help but "think like a lawyer". As a Syracuse New York construction lawyer, I see this accident as proof of why, many dozens of years ago, New York State's wise legislature passed a law known as Labor Law section 240. This statute may help this unfortunate worker today to get the financial compensation he may need.

Under Labor Law 240 a construction worker who falls from a height, including from ground level into a hole, generally has a New York personal injury claim against the owner of the property, the general contractor, and perhaps others as well, for failure to, among other things, cover or guard the hole to prevent the fall. The worker does not even have to prove that anyone was "at fault" or careless or negligent. The only thing he has to prove, generally, is that he fell because a "safety device" (such as a barricade or other means of preventing the fall) was not provided. Even if the worker himself was largely to blame for his own fall, he still wins his New York construction accident lawsuit if the proper safety devices were not provided or failed. The law was designed to give extra protection to construction workers who risk their life and health everyday by working from heights or in areas where they can fall and be seriously injured or killed.

There may be a problem with this particular construction accident case, though. It involves the construction of a single-family home. Labor Law 240 generally exempts from liability owners of one or two-family homes, as long as they are really going to use the home as a home and not for commercial purposes.

Also, the construction worker cannot sue his own employer because the Workers' Compensation Law bars him from doing that. But if the general contractor was some other company different from his own employer, then he can bring a Labor Law 240 claim against the general contractor.

Why would this worker want to bring a New York personal injury claim at all? Won't workers' compensation cover all his injuries? No. Workers' Compensation will pay him for only 60% of his lost wages, as well as all his medical bills, but that's all. If he's out of work for a long while, what does he do about that 40% reduction in pay? How will he pay his bills? Unless he brings a construction accident claim against someone, such as the general contractor under Labor Law 240, then he just has to "suck it up". But if he brings his Syracuse construction accident case and wins, the liability insurance will end up paying not only ALL his wages, but will also compensate him for his pain and suffering.

I was pleased to read in the Geneva Finger Lakes Times today that a regional representative of OSHA (federal Occupational Safety and Health Administration), Jennifer Lawless, speaking at Geneva's Ramada Inn, announced that, under the Obama administration, OSHA is stepping up compliance enforcement in the Syracuse and Central New York area, especially at outdoor work sites, such as construction sites.

We at Michaels & Smolak have consistently, year after year, brought Syracuse area construction accident lawsuits where compliance with OSHA and other safety regulations would have prevented devastating fall-related injuries. We know firsthand that Construction employers in Central New York often ignore OSHA and other safety regulations.

The OSHA regulations, if followed, would help prevent many of the devastating injuries, and deaths, that result from workers falling off ladders, scaffolds, buildings, roofs and other structures. For example, just this week, OSHA fined a construction company $539,000 for a roofer's 40-foot fall to his death at a Washington, Pennsylvania construction site. According to OSHA's website, the construction company "failed to provide any fall protection to its employees working on a pitched roof 40 feet off the ground". A spokesman from OSHA said the employer "knowingly and willfully failed to protect his workers from falling to their death" and that OSHA "will not tolerate this type of blatant and egregious disregard for the health and safety of workers." The very same day, OSHA fined a Pittsburgh construction company $70,000 for failing to provide fall protection to a construction worker who fell 225 feet to his death on a construction site. The same company had already been fined in 2007 for the same violations, but apparently did not "learn its lesson".

OSHA's increased safety enforcement in Syracuse and Central New York, while welcome, is probably not enough. Unfortunately, OSHA's fines are not a significant enough deterrent for many employers. They still find it cheaper to skirt safety compliance and pay the occasional fines. What really catches the construction employers' attention, though, is not an OSHA fine, but rather a construction accident lawsuit. In New York, special construction accident laws (especially Labor Law sections 200, 240, 241[6]) help injured construction workers and their families get compensation in court for their medical expenses, lost wages, pain and suffering, and loved one's wrongful death. I have posted blogs about these New York Labor Laws before. To read prior blogs on this subject, click here, here, and here.

Michaels & Smolak will continue to do its job of bringing lawsuits on behalf of injured construction workers when construction companies fail to abide by safety regulations, and OSHA will continue to do its job of fining construction companies for such violations. Perhaps this one-two punch will one-day finally deliver the following important message to the construction industry: "Safety pays, and if you don't believe it, you will pay, and pay dearly."

The Geneva Finger Lakes Times reports today that a construction worker fell 12 feet through an unfinished stairway of a house under construction in Yates County, New York yesterday, and landed on the gravel basement floor below. The worker, of Geneva, was brought by Mercy Flight to Strong Memorial Hospital with head and internal injuries.

We wish the best for the injured worker and his family. Twelve feet does not sound like a lot, but I know from representing construction workers in similar falls that, when you are caught off-guard by it, a 12-foot fall is huge.

In these blogs, I try to apply New York Accident law to facts gleamed from local news reports. The question I want to address here is, does the injured worker have a New York construction injury case? The answer is: It depends.

New York State has a very special law that protects construction workers from falls from heights. The law is called Labor law 240, also known as "the scaffold law". I blogged about New York's Labor Law 240 recently. Labor Law 240 is a "strict liability" law, meaning that the injured construction worker does not have to prove that anyone was NEGLIGENT; all he has to prove, generally, is that he fell because he was not provided with proper equipment to protect him from falling, or that the scaffold or ladder he was on failed to support him. If he can prove that, he wins, even if he himself was partly, or even mostly, to blame for the fall. In fact, the only way he can lose, generally, is if he is 100% to blame.

In this case the injured construction worker fell through an unfinished stairway, which is usually a slam-dunk construction accident case. The owner, general contractor, and perhaps others are going to be liable because there was no barrier or other safety device to prevent the worker from falling through the unfinished stairway. Either the opening should have been barricaded off, or the worker should have been somehow tied up to prevent the fall.

But there's a hitch. He was building a HOME. There is an exception to Labor Law 240 liability for one or two-family homes. The automatic liability of Labor Law 240 does not apply as to homeowners, except if the home is being used, or was going to be used, for a commercial purpose, or if the homeowner was directing and controling the work. The one or two-family home exception is meant to protect ordinary homeowners from the harsh, strict liability of the scaffold law (Labor law 240).

On the other hand, the general contractor, and perhaps others, can be held liable under Labor Law 240 even if the worker fell while building a home. The law cuts a break only to the homeowner, not to anyone else.

Bottom line: the construction worker probably has a "scaffold law" (Labor Law 240) strict liability case against the general contractor and others, but not against the homeowner, unless the homeowner was intending to use the "home" for a commercial purpose.

From our perspective as lawyers representing Central New York's injured construction workers in lawsuits against employers and construction site owners, it seems that there are a whole lot of OSHA scaffold, ladder and height-work violations in Syracuse and the surrounding areas. Every year without fail we file new lawsuits on behalf of injured construction workers who were caused to fall from scaffolds or ladders by safety violations. But apparently there may be more OSHA violations going on than even we could have imagined. A significant number of "hidden" accidents are never reported! Let me explain.

A little over a month ago, the U.S. Government Accountability Office (GAO), the auditing agency for Congress, reported that employers and workers routinely underreport work-related injuries and illnesses to OSHA. This means that the number of OSHA violations causing injuries is actually higher than OSHA reports.

Why are so many EMPLOYERS failing to report workplace accidents? The GAO believes it is because they fear workers' compensation premium increases and scaring off prospective and lucrative clients from contracting with them.

Ok, but why do EMPLOYEES fail to report their injuries? The GOA says it is because they fear getting "the ax", or getting reprimanded, or undermining their chances of getting safety-based rewards and bonuses.

OSHA registered 4 million workplace injuries in 2007, including 5,600 fatalities. But if in fact employers and employees are hiding workplace injuries and illnesses from OSHA, then these figures are understated. The GOA report found that OSHA may have failed to include up to 2/3 of U.S. workplace injuries and illnesses.

The solution to the under-reporting? OSHA says it will accept the GOA's recommendation that it require its inspectors to more thoroughly interview employees during routine audits so as to cross-check the accuracy of the accident reports (or lack thereof) they are getting from employers.

Will it work? Not if employers are encouraging employees to maintain a good safety-record at all costs, including by sweeping accidents and injuries under the rug. Employers can do this by wielding the "big stick" of dismissals and reprimands for reporting accidents, or by offering enticing under-reporting "carrots" to their employees in the form of rewards and bonuses for "good safety records."

OSHA had better think harder about how to avoid this pervasive under-reporting.

The U.S. Department of Occupational Safety and Health Administration, commonly known as "OSHA", has released its "Top 10 Most Frequently Cited" violations for 2009. This list not only exposes the most frequently violated safety regulations in 2009, but also, in my experience, represents a pretty accurate list of the top 10 violations that, year after year, cause the most serious injuries in the workplace in New York. Here's OSHA's top ten list (with my editorial notes tagged on):

1. SCAFFOLDING, CONSTRUCTION (29 CFR 1926.451)
Note: The NUMBER ONE safety violation. Scaffold accidents are frequently caused when the planks or support boards collapse or slip off the scaffold frame, or when the scaffold worker slips and falls from the scaffold or is struck by a falling object that causes him to fall off the scaffold. In a previous blog post, I wrote about how injured New York scaffold workers benefit from a special Statute, Labor Law 240, which allows them to sue for compensation for such scaffold violations. We have represented many construction workers in scaffold accident cases.

2. FALL PROTECTION, CONSTRUCTION (29 CFR 1926.501)
NOTE: Any time a worker is at a height, OSHA rules require that he be protected from falling by use of lanyards, safety nets, and other fall-protectors. New York's special Statute, Labor Law 240, which I previously blogged about, allows New York's injured construction workers not properly protected from such falls to bring claims for compensation for their pain, suffering, lost income, medical expenses and other damages. We have represented many construction workers injured in such falls.

3. HAZARD COMMUNICATION, GENERAL INDUSTRY (29 CFR 1910.1200)
NOTE: Chemical manufacturers, importers and others are OSHA-required to evaluate the dangers and hazards of the chemicals they put on the market, and are further required to create warning labels and safety data sheets to communicate these hazards to the downstream users. Apparently, they fail to comply with high frequency.

4. RESPIRATORY PROTECTION (29 CFR 1910.134)
NOTE: Respirators protect workers from the dangers of hazardous dusts, smokes, gases and vapors. Exposure to such air-borne materials can lead to cancer, asthma, lung impairment, other diseases or even death. I recently blogged about a large settlement we had for the victim of occupational lung disease. As the large number of OSHA respiratory protection violations in 2009 shows, our client was far from the only victim of needless workplace lung injury.

5. CONTROL OF HAZARDOUS ENERGY (a/k/a Lockout/Tag out) (29 CFR 1910.147).
NOTE: "Lockout/Tag out" refers to practices and procedures to protect employees from the unintended startup of dangerous machinery and equipment, or unexpected release of hazardous energy during service or maintenance of machinery. Unfortunately, failure to follow required lockout/tag out procedures often results in devastating injuries, including mangled or burned limbs, or even death. We have handled many cases of "lockout/tag out" violations.

6. LADDERS, CONSTRUCTION (29 CFR 1926.1053)
NOTE: Ladders that are improperly placed, positioned, operated or used often cause workers to fall, resulting in horrendous injuries or death. New York's special statute, Labor Law 240, which I have blogged about, also protects New York construction workers who are injured on ladders. We have handled many such claims.

7. POWERED INDUSTRIAL TRUCKS (29 CFR 1910.178)
NOTE: Many workers are injured every year by powered industrial trucks, or forklifts. For example, we are currently representing a worker who was driving a loaded forklift from the back of a truck onto a loading dock when the truck, which was not secured with "blocks" under its wheels, as required, rolled away from the dock, causing the forklift, and the driver, to fall between the dock and the truck.

8. ELECTRICAL, WIRING METHODS, COMPONENTS and EQUIPMENT, general industry (29 CFR 1910.305)

9. ELECTRICAL SYSTEMS DESIGN, general requirements, general industry (29 CFR 1910.303)

10. Fall protection, training requirements (29 CFR 1926.503).

So there you have it: This year's "top ten" OSHA violation list. When will employers and others in charge of workplace and construction site safety finally get it? When will these frequent, serious, and life-altering safety violations end? I don't know, but I do know this: As long as they continue, we at Michaels & Smolak will continue to fight for the victims of those violations.