Although it may seem to unfairly penalize contractors and owners, Section 240 provides the motivation needed to maintain safe work sites, says one lawyer.

By Michael Gunzburg

At first blush, Section 240 of the New York Labor Law appears to be pro-plaintiff and anti-contractor.

After all, it attaches strict liability to property owners and general contractors when a construction worker falls and no safety devices are present. In most viable Section 240 cases, liability is established without a trial, with only the amount of the damages left to be determined by a jury. Construction workers - and plaintiff attorneys who sue on their behalf - appreciate the protection it offers. Contractors and insurance carriers loathe it because when the fact pattern fits the statute, it is virtually certain they will have to pay significant settlements.

Rather than being anti-contractor, however, Section 240 is a statute based on fairness, logic and the larger public good. Any attempt to weaken it would be short-sighted, and could result in far more devastating injuries and deaths. The fairness stems from the logic that most construction workers have little or no control over work site safety. Why should a construction worker have to prove what we logically know to be true?

The larger public good stems from the notion that construction workers would rather have their health than all of the money available under their employer's insurance policy. The law - and the potential of large payouts to injured workers - is best used to force contractors and owners to maintain safe work sites.

The quarrel that contractors, their insurers and defense lawyers have with Section 240 is that it fails to recognize workers' roles in accidents that lead to injury. However, the case law provides owners and contractors with the recalcitrant worker's defense. In instances where the owner or contractor furnishes the worker with the proper safety equipment and he refuses to use it, the owner and contractor will not be held strictly liable.

Corollary arguments are that most workers have unions, with shop stewards and grievance procedures when the work site is considered unsafe. The trouble is those notions do not mesh with the reality of the construction workplace. Workers can be intimidated into not complaining about unsafe conditions. For many, there is a language barrier. In some cases, the union affords little protection. Indeed, the contractor sets the tone for the site.

Contractors, like most businesses, are motivated by money. Often their contracts provide for substantial bonuses if construction projects are completed quickly. Most people would think that serious injuries or deaths would be sufficient incentive to provide appropriate safety equipment, but frequently it is too little, too late. Instead, hefty settlements - and subsequent increased insurance premiums - give the owners and contractors the ultimate financial incentives to keep the work site safe.

In April 1999 my client, Manny Caamano, a construction foreman on a city-owned site, fell more than 20 feet from a beam onto a concrete-filled trench when the handle broke on an 83-pound bucket he was lowering to the ground. He fell backwards from the beam and landed on his feet, rear end and hands, suffering disabling injuries. As it was, Caamano, who will never work again, had to endure legal wrangling and machinations beyond what a severely injured person ought to face. The city and his employer filed various motions to dismiss the case and limit his recovery to workers' compensation. Ultimately, the trial judge ruled that Caamano's employer was solely liable for his injuries. During a trial to determine the extent of the damages, the construction company's insurance carrier agreed to settle the case for $4.5 million.

That sounds like a lot of money, and in many ways it is. However, he will have to pay future medical costs, which figure to be astronomical as he faces surgeries on top of the seven he has already undergone. That money is the last paycheck that Caamano will ever receive, and it took nearly five years for him to get it. Without Section 240, he probably would be several years away from being compensated.

It is high time that all sides of this issue recognize Section 240 for what it is: Generally, the only financial incentive that a contractor has to ensure the safety of his construction workers. It would fly in the face of good conscience and public policy to weaken Section 240. If contractors simply obey the law by providing safety equipment for their workers, then this statute should not be feared.

This is the first of two stories looking at the pros and cons of Section 240.

Michael Gunzburg is an attorney with the Law Office of Michael Gunzburg in New York, N.Y.