WHAT NEW YORK’S BUSINESS COMMUNITY DOESN’T WANT YOU TO KNOW ABOUT THE SCAFFOLD LAW

New York’s Scaffold Law , Labor Law Section 240 and its related statutes, is a hot-button issue again, pitting those needing compensation for often life-changing injuries against the so-called tort reformers, who believe the laws are too favorable to victims of construction site negligence. Here is a voice that expresses a view “from the trenches,” and from the perspective of the minorities that are often victimized. On the other side of the fence is the business community, which relies on demonizing “trial lawyers,”  frightening business owners, and reshaping facts (i.e., New York is the only state with worker-protective labor laws). Here is a recent example by one of its regular mouthpieces. Of course, the same type of construction law liability has been in place in other states for years: including in Texas  and Illinois . But acknowledging that might obscure the message of fear mongering the tort “reformers” rely on.

Here is something that no one wants to talk about, least of all the comfortably-ensconced insurance companies who purport to insure general contractors from construction site liability. To say that they do not vet carefully the construction companies they insure is a sad understatement. They will insure anyone who sends them a check, as the story of a client of mine shows. And should an insured make any one of several missteps once an injury happens, the construction liability insurance companies will “disclaim” coverage, hurting not the insured who purportedly erred, but the victim of the insured’s often gross negligence, who may never see the benefits of the insurance policy.

The reality is that many in the local construction industry are immigrants, legal and otherwise. Becoming a general contractor, even a small one, is often a first step up for newcomers with some basic training in the trades. Many construction sites in the New York City area are run by such small-time, hungry-for-business operators. Their sites are nothing like those run by giants of the local construction industry, such as Macklowe, which at least attempt to look out for worker safety. Cutting corners, paying workers “off the books,” and overlooking safety requirements are everyday affairs, and the insurance companies know this.

My immigrant client was working at such a site in New York City when he fell off of a second-story balcony, landed in the pit below, broke his neck and crushed his spinal cord . He will be in a wheelchair for the rest of his life. The balcony had no safety barricades. There was no safety netting. My client was never offered a safety harness. There was no safety equipment on the site. There was never even a “toolbox talk.” The general contractor was also an immigrant, from the same country as my client. He’d bought liability insurance, though he hadn’t met some obligations he was supposed to have met with subcontractors, all of whom were his friends. But the larger problem was that he did not, according to the insurance company, notify it as soon as practicable. The timing of the notification is still an open question, as is the issue of whether the small-time general contractor who made use of my client in a less-than-traditional way was even aware of his reporting responsibilities.

The end result, though, is that there is an excellent chance that my client will never be compensated for the life-changing injuries he received as a direct result of unquestionably gross negligence on the part of a contractor. And he is not alone. And this will happen again and again. Somehow, the construction liability companies do not seem bothered enough by this recurring circumstance to do anything about it. And why should they be bothered? They are getting paid.