New York’s so-called “scaffold law” (Sections 240(1) and 241(6) of the state’s Labor Law) have become notorious. Detractors in the insurance, construction and real estate industries say it is unfair, redundant, and the cause of sky-high liability insurance premiums. Supporters say that it protects vulnerable construction workers and holds project owners and contractors accountable for workplace safety.
Critics and supporters both point to one important feature of the law as applied by the courts: An owner or contractor fighting a lawsuit under it cannot cite the worker’s contributory negligence as a defense. “Contributory negligence” is just that – the worker contributed to his injury through action or inaction. It is true that, if an injured worker can prove that the scaffold law was violated, the owner and contractor cannot use contributory negligence as a defense. To win a scaffold law case, an injured worker must prove two things:
1. The law was violated (that is, the owner and contractor failed to provide a safety device named in the law or provided one that was defective or inadequate); and
2. That failure to provide proper equipment caused the injury.
If the worker can prove those two things, it’s game over. The only question left is how the settlement payments will be structured.
If you read the text of Section 240(1), it doesn’t say anything about contributory negligence. So why are defendants unable to mention it? The reason is embodied in one name. If you are an insurance producer, the next time you have to deliver a general liability renewal policy with an obscene premium …
The next time you have to scour the surplus lines market for a carrier willing to provide even minimal amounts of coverage for a contractor …
The next time a carrier points to your lousy loss ratio and blames it on your construction accounts …
Remember one name:
One day in the winter of 1941, Isidore Koenig stepped onto a ladder and tumbled off it, right into liability insurance history.
On that day, as the country was dragging itself out of the last stages of the Great Depression and jobs were not to be taken for granted, Mr. Koenig, an independent contractor who cleaned windows, had a gig. Patrick Construction Corp. was doing construction work on a school, and it hired Mr. Koenig to work on the windows. On February 7, 1941, Patrick Construction employees told him to scrape and remove paint from a large window in the school’s auditorium. On hand was a wood extension ladder that lacked both safety shoes to keep it from slipping on a surface and even notches to which the shoes could be fitted.
Mr. Koenig testified that he argued that the ladder wasn’t the right device for the task, but the Patrick Construction employees told him to use it anyway. He did as he was told. He ascended 16 or 17 feet above the floor (roughly one and a half stories.) At some point while he was working, the ladder slipped. Mr. Koenig fell, face-first, onto the auditorium floor with nothing between him and it other than the ladder. The New York State Court of Appeals decision does not describe his injuries, but it’s not hard for me to imagine how bad they were.
Mr. Koenig, who apparently survived the fall, sued Patrick Construction, alleging that it had violated Labor Law Section 240(1). The trial court judge told the jury that it could rule in Koenig’s favor only if he could prove that he had not contributed any negligence to the accident himself. The jury, apparently noting that he got on the ladder voluntarily, ruled against him, and he appealed.
In 1948, the Court of Appeals overruled the lower court’s decision, ordered a new trial, and in the process affected the New York insurance market in ways we still feel 66 years later. Judge Stanley H. Fuld wrote, “…(I)t is our judgment that both sound reason and persuasive decisions, involving statutes whose content and purpose are similar to those of section 240, require the conclusion that that statute does not permit the worker's contributory negligence to be asserted as a defense.” He explained:
Workmen such as the present plaintiff, who ply their livelihoods on ladders and scaffolds, are scarcely in a position to protect themselves from accident. They usually have no choice but to work with the equipment at hand, though danger looms large. The legislature recognized this and to guard against the known hazards of the occupation required the employer to safeguard the workers from injury caused by faulty or inadequate equipment. If the employer could avoid this duty by pointing to the concurrent negligence of the injured worker in using the equipment, the beneficial purpose of the statute might well be frustrated and nullified. That possibility we long ago perceived and provided for, declaring that ‘this statute is one for the protection of workmen from injury, and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed’. … Such an interpretation manifestly rules out contributory negligence as a defense to an action predicated upon violation of the statute to the injury of one in the protected class.
From that day to this, injured workers have won scaffold law suits if they can prove a violation of the law that caused the injury. The only circumstance under which an injured worker’s conduct matters is when the defendant can prove that the worker’s conduct was the sole proximate cause of the injury. It does happen, but it’s not easy to do.
IIABNY’s Legislative (L) Day is coming up on March 25, and scaffold law reform is the top priority for the day. If you think the Koenig decision is unfair in today’s business climate, then I encourage you to make the trip to Albany that day. Isidore Koenig and Judge Stanley Fuld are long gone, but they’re still exerting a powerful influence on your business today. Will they still have that kind of influence tomorrow?