Interviewer: What is the Scaffold Law and how does it affect safety at construction sites in New York?

Joseph Awad: The New York Scaffold Law (Labor Law section 240), requires building owners and general contractors to provide workers with proper scaffolds, hoists, harnesses and other appropriate worksite safety and equipment. If a construction worker is injured because the owner or general contractor failed to provide safety equipment, then the owner or contractor can be held fully liable. New York State's Scaffold Law applies only to work at elevated heights and does not apply to the owners of one or two family dwellings.

Interviewer: How does the Scaffold Law make New York different from other states?

Joseph Awad: New York State's legitimate construction industry is virtually the safest in the nation, thanks in large part to the Scaffold Law and other safe construction worksite state laws (Labor Law sections 200 and 241). According to statistics compiled by the United States Department of Labor, New York State consistently ranks as the second lowest rate of construction injury among the fifty states. Many states have more than twice the rate of worker injury because of the absence of scaffold and safety state laws similar to New York's.

Construction work is inherently dangerous. In high elevation work, particularly when working on a scaffold, ladder or roof, a moment's lapse in attention can result in death or serious injury unless workers are supplied with adequate safety equipment to protect them against a fall.

Without the Scaffold Law, more building owners and general contractors in the highly competitive construction industry would cut corners on safety and more workers would be injured or killed in construction falls. The owner who signs the construction contract with the general contractor and then makes payment is in the best position to insist on full compliance with all safety standards.

Interviewer: Do New York State's construction safety laws favor the employee or the employer?

Joseph Awad: Actually, New York's safety laws favor both the employee and the employer. The employee benefits from having construction safety equipment available at the worksite to protect him or her from harm which could result in loss of earnings, permanent disability or death and the inability to support children and spouses. The employer benefits because when injury is prevented, workers compensation insurance rates remain stable.

Tax payers also benefit because when workers are injured and are permanently disabled, taxpayer money is often needed to help compensate for the damage caused to the worker and the family through benefits such as Medicaid, permanent disability payments and other social service programs. The Scaffold Law saves taxpayers money because it requires owners and general contractors to take responsibility through private insurance.

The owners and general contractors in the legitimate construction industry benefit because they can require subcontractors to follow specific safety procedures at the worksite under the authority of the law.

Interviewer: How does OSHA affect New York's Scaffold Law?

Joseph Awad: The Occupational Safety and Health Administration (OSHA) found that 33% of all construction fatalities are from falls from an elevation and another 22% were from being struck by an object. These are exactly the hazards which can be prevented and guarded against under New York State's Scaffold Law which requires proper use of scaffolds, hoists, harnesses and other safety equipment.

Violations are especially prevalent in construction worker trades like roofing and masonry were most work is at elevated heights and disproportionately involved in small construction companies that did not include safety protocols, safety meetings or regular safety inspections of the worksite as part of the construction project or contract.

OSHA is a federal agency which has authority only over the employer. It has no supervisory power over the owner or the general contractor of the construction site. This is why New York State Labor Law sections are necessary to avoid worksite injury because the law applies to owners and general contractors, not just employers.

Interviewer: Does New York State Labor Law construction site safety sections apply to all worksites?

Joseph Awad: The Scaffold Law does not apply to owners of one or two family dwellings, which means that the home owner is not affected by the Scaffold Law. The other sections of the Labor Law (sections 200 and 241) apply only if the owner actually controls or supervises the construction work being done.

Interviewer: How do New York State labor laws promote worker safety?

Joseph Awad: In high elevation work, a worker who falls several stories down in an uncovered elevator shaft or stairwell (an accident that is always preventable if the opening is blocked off as required) should not have his or her recovery reduced on the theory that the worker should have been more careful walking around the opening. Quite simply, the failure to cover the hole caused the accident; it is unfair to blame the worker engaged in dangerous construction work. The same analysis applies to the lack of safety equipment at the construction site. Harnesses, ropes, safety lines, ladders and scaffolds need to be provided by the owner, general contractor or subcontractor.

Without the Scaffold Law, more building owners and contractors in the highly competitive construction industry would cut corners on safety and more workers would be injured or killed in construction falls. The owner who signs the construction contract and makes the payment can and should insist on, and budget for, full compliance with all safety standards.

By making building owners and general contractors responsible for worksite safety, the Scaffold Law effectively ensures that owners and general contractors adequately budget and pay attention to safety issues and hire subcontractors who have excellent safety records. The Scaffold

Law deters owners and general contractors from hiring subcontractors who have poor safety records.

The law also provides that anyone who violates the law is subject to strict liability, a legal term which makes the violator automatically liable for damages regardless of fault. In this case, if an owner or contractor does not provide workers with the proper safety equipment (scaffolding, harnesses, etc.) and someone is injured – even if that person was negligent – the owner or contractor will still be held liable for his or her injuries.

Strict liability is not common and usually applies only in situations which the legislature has deemed inherently dangerous. Strict liability in New York construction law discourages reckless behavior by forcing owners and contractors to take every possible precaution. It also may have the effect of simplifying litigation and allowing victims to become whole more quickly.

Interviewer: What are the damages that a construction worker can sue for under the New York State law?

Joseph Awad: Damages include loss of earnings, medical expenses, rehabilitative expenses, compensation for the pain inflicted, compensation for permanent disability, compensation for the level of impairment of duties and responsibilities as a spouse or a parent, for permanent suffering such as disfigurement and impairment of quality of enjoyment of life.

Interviewer: How does workers compensation interact with the New York Scaffold Law?

Joseph Awad: Workers compensation is provided through the employer's insurance company so that there is immediate coverage for medical and hospital expenses and a little money to soften the impact of the loss of wages due to the injury. Workers compensation money received by an injured worker, or paid on his or her behalf, must be paid back to the workers compensation insurance company when there is a recovery in a personal injury lawsuit. Also, when a worker is compensated under New York labor laws, workers compensation payments stop.

Interviewer: Are there certain typical construction site accident scenarios in New York?

Joseph Awad: Yes, particularly from heights and many times involving Hispanic workers. Fifteen percent of workplace fatalities involve Hispanic workers, although they comprise only 10% of the workforce. In New York City, this pattern is specifically more pronounced as they account for 27% of New York City's population, but represent 62% of all worksites deaths in New York City.

In 2003, the Community Development Research Center of the Graduate School of Management and Urban Policy at the New School University, estimated that there were 8,333 day laborers in the New York City metropolitan area. The research study found that day laborers worked predominantly for small business owners primarily in construction, painting and carpentry industries.

Small contractors without good safety records, or without devoting adequate attention to safety protocol, often hire day workers and cut corners by not providing them with safety equipment, which in turn results in worksite injury and possibly death.

Interviewer: What qualifications should an injured person look for in a lawyer to represent them in a construction site accident in New York?

Joseph Awad: The most important qualification is experience. Many lawyers advertise for business based on their overall personal injury experience involving car accidents, slip and falls and other types of negligence cases. However, in construction site accident cases, an experienced lawyer's knowledge counts.

Integrity, trust and concern are also qualities that clients need from their attorney. Since clients rely on their attorney as a confidant and counselor to help them recover the lives that have been devastated by an accident or injury, the client should always ask the lawyer what their experience has been in the field of construction site accidents. Interviewers should ask questions such as:

• What are some of the recent cases your law firm has resolved successfully?
• What verdicts or settlements have you obtained?
• What types of appeals have you argued in the appellate courts?

Interviewer: How are construction accident lawyers compensated?

Joseph Awad: Generally, lawyers representing injured construction workers are paid on a contingency fee basis. This means that the client is not billed by the hour and only pays a legal fee if the lawyer obtains a recovery for the client. Lawyers representing injured workers will only collect a legal fee as percentage of the compensation recovered. This gives the construction worker the ability to have a fair day in the courthouse when fighting the large insurance companies behind the owners and general contractors.

If you’ve been injured on a construction site that lacked the appropriate safety equipment, contact a lawyer who understands this law. To contact an attorney, click here.