This article focuses on the recent, horrific crane collapses on the Manhattan’s East Side on March 15 and May 30, 2008.
The original article appeared in our Spring newsletter. It discussed the crane collapse in the East Side in Midtown on March 15th which killed 7 people. This collapse drew great public outrage as to deficiencies in the building inspection process. However, incredibly on May 30th there was another fatal crane collapse uptown which killed 2 people. The issue of crane and construction safety and oversight by the New York City Buildings Department has become a “Page 1” concern.
Aside from the very immediate concerns of determining the cause of these accidents, eventually, the families of the dead and the injured will seek recovery in the courts. This article discusses their rights.
It came suddenly . . .
On a pleasant and sunny Saturday afternoon New York City had its worst construction accident of recent memory. A tower crane being used in the construction of luxury apartment house collapsed on East 51st Street. 7 people were killed including 6 construction workers and 1 out of town visitor in a townhouse which was flattened by part of the fallen crane. About 24 other people were injured.
Then, almost 2 months later there was another crane collapse on East 91st Street and First Avenue which killed 2 construction workers. In the words of many New Yorkers, this has been the last straw. These catastrophes will spur reforms in the inspection process of the Department of Buildings. It is hoped that these disasters will be spur greater safety measures which will prevent future disasters.
Construction workers’ protections
The losses were catastrophic. Fortunately, the law recognizes that construction work is very hazardous, and the injured and killed workers have special protections available in the courts which will help them and their families get just compensation.
New York’s Labor Law section 240 (1) is unique in the United States in that it protects construction workers hurt due to elevation hazards, such as falls from scaffolds, ladders, platforms, elevators, and cranes. The law provides that the owner and his general contractor will be liable to the injured worker where an elevation device fails and causes injury or death. This includes the situation where a worker falls and also where the elevation device falls on the worker.
This statute does not require that the injured worker prove negligence against the owner and his general contractor. The burden of proof is lesser than the regular negligence burden of proof so that often a trial on liability is unnecessary. For example, all that the injured worker need prove is that the elevation device (such as the crane) failed and that such failure caused his injury. He would prove that either he fell from it or that it fell on him. The worker does not have to prove that either the owner or general contractor or crane operator were negligent or careless. In this case, this lesser standard of proof is helpful to the injured worker because the preliminary indications are that the happening of the first East Side crane collapse may be have unforeseen.
The result of this statute is that the worker is not forced to prove fault. Often, the injured worker will obtain a finding through a pre-trial summary judgment motion that the owner and contractor are liable, therefore, fault is not tried. If the worker obtains summary judgment, then the only issue for trial is the amount of damages.
This law was intended to give an extra measure of protection to construction workers. The Legislature recognized that construction workers have little to no control over their workplace. Construction is dangerous, and working at elevated heights is especially hazardous. Often, the contractor will order his men to continue working where there is an unsafe condition, and the men have to comply for fear of losing their job. The owner and his contractor control the work conditions and have the financial ability and legal obligation to make the workplace safe. The construction worker does not have this power. Therefore, the financial burden of loss is placed on the owner and contractor.
Assault on worker protections
This special protection has been under attack by the tort reform lobbies for the last ten years. The so-called tort reformers want a full repeal of this law. They argue that construction workers should be given no better rights than anyone else. Essentially, the real estate and construction industries want repeal so as to lessen their building costs.
The New York State Trial Lawyers Association and organized labor have fought to keep this statute on the books. The tort reformers claim that this statute has created extra-high insurance premiums for contractors especially the small mom and pop contractors. However, the construction industry is very strong. This includes the big contractors who build office towers and the small ones who do home renovations. Furthermore, the protections of this statute are limited to only certain circumstances; it does not cover all construction mishaps. See Frequently Asked Questions.
Construction workers working at elevations endure extraordinary risks. In New York City’s boom real estate market the owner and contractor should take-up the financial burden and be responsible to their workers. Owners and contractors need a financial incentive to prevent another crane collapse. The statue provides this incentive.
Finally, it appears that the Buildings Department has not satisfactorily inspected and regulated the many construction sites around New York City. The Labor Law provides a financial incentive for owners and builders to make their work sites safe.
Now, more than ever, we need Labor Law section 240 (1).
Frequently Asked Questions
Question: What is the nature of the special protection of Labor Law section 240 (1)?
Answer: This law places an obligation on the owner and general contractor to provide safe elevation devices, such as ladders, scaffolds, platforms, hoists, elevators, and cranes. If a construction worker is hurt by a defective elevation device, then the worker has the equivalent of a strict liability case against the owner and contractor. In other words, liability does not have to be decided by a jury, and only damages will be decided by the jury.
Q: Does the law provide protection to construction workers in every work accident?
A: No. This statute is very limited. Furthermore, the courts have limited its application. Generally, it applies to injuries resulting from elevated risks and activities, such as those involving scaffolds, ladders, hoists, pulleys, elevators, and cranes. For example, if a worker falls from a ladder which collapses under him, then he is covered under the law.
Q: Would the law cover the worker if he were hurt from something that fell on him?
A: It depends on the facts. Generally, the worker must be hurt by an elevation device which fails while it is in operation during construction. In one of our cases a worker was injured by a pulley which hit him in the head and knocked him cold. However, the pulley was not being used for construction. It was holding-up a decorative banner displaying a cartoon character in the nearly completed Warner Brothers store. The court held that our client was not protected under the Labor Law in that the pulley was decorative and was not being used in construction.
Q: What happened to that client’s case?
A: That case was dismissed. The courts have been become very aggressive in limiting the application of the Labor Law. Unfortunately, while the case was pending the Court of Appeals made a ruling on falling objects which hurt the client’s case.
Q: In cases where the Labor Law is inapplicable, is the injured worker left without any source of recovery?
A: Generally, all workers injured in the course of employment will be covered under the Workers’ Compensation Law for lost income and medical expense. However, based on the facts of the case and the Labor Law there may be or may not be a basis for a lawsuit against the owner, contractor, or other parties. .
Q: If we were look at the recent crane accidents in Manhattan, who would be protected?
A: Construction workers either killed or injured would receive the law’s special protection in that they were injured from a crane (an elevation device) which was defective. The workers who fell with the crane would be covered. The workers who were injured from the falling crane or falling debris would also be covered.
Q: Would the estate of the visitor in the townhouse which was demolished in the first accident be protected under the Labor Law?
A: No. The Labor Law only protects construction workers. That unfortunate person’s estate would have to prove that the owner, contractor, and crane company were negligent in causing the accident. The estate should be able to prove negligence under the doctrine of res ipsa loquitur which would hold the owner and contractor and crane company responsible due to the extraordinary nature of the accident which in itself bespeaks negligence.
Q: Does this law protect a worker who falls only a couple of feet from a defective ladder or even a step stool?
A: Yes. The law is intended to cover regular construction accidents and not only catastrophes. Indeed, a worker who falls a short distance can be very injured. We have had cases where the client’s fall has been as little as a foot.
Q: Is the law limited to certain types of construction sites?
A: Yes, the law exempts 1 to 3 family private homes.
Q: I own a small commercial building. Would my outside painter be covered under this law?
A: Yes, painting is covered as one of the enumerated construction activities. However, the law does not cover activities which could be construed as mere maintenance, such as changing light bulbs.
If you have any questions about a construction accident please feel free me at 800-581-1434 or write to firstname.lastname@example.org.
Mark E. Seitelman, 6/23/08, www.seitelman.com