Look at this kid! Fernando Vanegas, 19 years old. Same age as my son Sebastian, who just went off to college. Full of life, of hopes, of dreams, just like Sebastian. Fernando came to Queens, New York from Ecuador only a year ago to reunite with his parents whom he had not seen in 15 years. As an immigrant with almost no English, the best job he could land was in the construction industry. Dangerous work. He would come home at night and tell his parents how frightening his work was; close calls involving retaining walls almost falling on him. Then, last Thursday, he did not come home. A retaining wall collapsed, burying him and two other workers in a heap of cinder blocks. He died.
He should not have died. The warning signs were all there. The site should have been shut down. Several safety violations had recently been reported, including that the retaining wall was not stable. The City failed to shut down the work.
Fernando was a canary in a coal mine. Now of course the site is shut down. Now of course, at least for a while, the City will err on the side of caution, and shut down similar sites. Shame on his employer, and shame on the City of New York inspectors, for allowing him to die under such conditions, without heeding such obvious warning signs of danger.
Unfortunately, construction work continues to be one of the most dangerous industries for American – and immigrant — workers. If you work in construction, the two greatest threats to your life are: (1) things falling on you and (2) you falling from things (scaffolds, ladders, etc.). After that, there are all the dangerous machines, which cut off limbs, mangle digits, etc.
Fernando’s case proves that construction work in New York is still far too dangerous. But, believe it or not, New York State is safer than almost any other state in the union. We have the strictest safety laws for construction workers. In fact, construction companies and their insurers are constantly whining about how strict New York law is. “Too expensive to do business there“, they say.
Death is cheap, as long as they don’t have to pay for it. But in New York, often they do. And I am not just talking about workers’ compensation, which is always inadequate. I am talking about plenary lawsuits with plenary damages, including pain and suffering compensation.
The New York law the construction and insurance industry most often complain about is the “scaffold law”, which – in essence – says that if a worker falls from a height or something falls on a worker the owner of the site and the general contractor and any of their agents can (usually) be held liable for the worker’s injury or death, even if the worker himself was partly to blame for the accident.
Unfortunately, for reasons I don’t have space to go into here, the “scaffold law” itself (Labor Law section 240) will not be available for Fernando’s family. But other good New York construction worker protection laws (Labor Law sections 200 and 241) should be available to his family. I hope they go after everyone who had anything to do with letting this happen, and that they get zillions of dollars in compensation for the loss of their young and beloved son. This will serve two noble purposes: (1) it will give a measure of justice for this poor grieving family and (2) it will make the construction industry think twice about letting something like this happen again.
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Michael G. Bersani, Esq.