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.
