If you walk into a Syracuse, New York pub on a Friday at 5:20, and you happen upon a group of personal injury lawyers having an end-of-the-week beer, you might hear them rant about how unfair some New York personal injury laws are. For example, unlike most States, New York does not allow the immediate family of a wrongful death victim to receive compensation for their grief and heartache at losing their loved one, even if that loved one is a child. A millionaire drunk driver ran over your thee year old? Tough luck, mom. Was he supporting you economically? Of course not, so you don’t get economic loss recovery. So what if he was the most important thing to you in the whole world, and your life has been destroyed by losing him. No compensation for your grief! You might settle that case for a few thousand dollars, but not the millions it is really worth. Very unfair!
But New York personal injury law has its upside, too. For example, unlike any other state, New York has something called “the scaffold law”, also known as Labor Law section 240. That law allows construction workers and others who fall from heights – and in some cases upon whom objects fall — to get full compensation for their injuries. This compensation goes far beyond mere workers’ compensation. The injured fallen worker can sue the general contractor and owner of the construction project for real money, including pain and suffering compensation. Usually, the case will involve a ladder or scaffold that failed, but can also involve a worker falling because he was not provided with adequate fall protection, such as a harness or barrier.
But here’s the real kicker, and here’s why New York construction accident lawyers like me just love Labor Law section 240: The injured worker gets fully compensated even if the fall from the height was partially his own fault, as long as Labor Law section 240 was violated. And Labor Law section 240 is violated almost anytime a construction worker falls from a height, whether because the ladder or scaffold or harness failed, or because such safety devices were not provided, or because proper barriers were not in place.
Again, even if the worker himself is somewhat at fault, he wins his 240 case as long as he is not the sole cause of his fall. For example, if a worker, in rushing to get the job done on time, trips and falls from a roof, but the employer did not provide him with a harness and lanyard that otherwise would have prevented the fall, the injured worker wins his case. He may have been partially at fault for causing his own fall by rushing, but he was not 100% the cause. At least part of the cause was his employer’s failure to supply him with a harness/lanyard. He will get FULL recovery, including all his lost income, medical expenses, and pain and suffering compensation, even though he was partially at fault.
Now you can see why New York construction accident lawyers like me love this law. And no, I don’t think it is unfair because it tilts the playing field too far in favor of the worker. The whole purpose of the Statute is to make sure that construction companies and others take every conceivable precaution to prevent the deadly, life-and-limb threatening accidents that are so prevalent on construction sites. No excuses! Make your safe site, or pay the consequences! And no, we will not let you shift blame to the worker who fell (unless he was SOLELY to blame).
I am thinking a lot about the scaffold law these days because I have recently argued two of those cases up at the appellate court in Rochester, New York. I already received a Decision on the first case (Provens v Ben Fall Dev., LLC), which I won. I am awaiting a Decision on the second case I argued, Allington v. Templeton Foundation.
In Provens, my worker/client, a roofer, fell from the roof when a “toe board” (a six-inch board nailed directly to the roof) he had been standing on suddenly detached from the roof causing him to tumble to the ground below. We never found out why the toe board detached, or even who had installed it. It did not matter. The fact that it failed to sustain my client while he was working was a Labor Law 240 violation.
The defendant argued that my client should have installed a “roof jack” instead of working from a “toe board”. But that did not matter. Even though the accident might have been partially my client’s fault, it was not SOLELY his fault. A violation of Labor Law 240 by someone, no matter who (as long as it not only my client), meant that my client would win his case. He did. As the Court said, “contrary to defendants’ contentions, plaintiff’s alleged failure to utilize other safety devices available on the job site, including his alleged failure to reinstall the toe boards with additional supporting roof jacks, raises no more than an issue of contributory negligence”, which is not a proper defense to a Labor Law section 240 case.
In support of that last sentence, the Court cited to another case I had won earlier at the same appellate court: Fronce v Port Byron Tel. Co., Inc. In fact, in my argument, I was using Fronce kind of like a toe board; I was “standing on” Fronce to argue Provens. And I was sure glad that my toe board did not fail!