State liable for worker injury

By Todd Etshman
Posted: 5:10 pm Thu, January 5, 2012

The Appellate Division, Fourth Department upheld a New York State Court of Claims decision in favor of a construction worker who was injured when an unsecured skid box fell from on a forklift and struck him in the back.

The Court of Claims found the state, which hired a company to work on several Buffalo-area bridges, was liable for the worker’s injuries under sections 240(1) and 241(6) of the New York State Labor Law, and the Appellate Division affirmed in Dipalma v. State of New York, 1369 CA 11-00457.

Although section 240 of the Labor Law does not have a minimum height requirement for the statute to apply, the defendant in Dipalma alleged the elevation in this case minimal and did not rise to a level of liability. In its ruling, however, the court disagreed and said a protective device should have been used to secure the skid box to the forklift.

“Although the skid box fell only one or two feet before it struck claimant, in light of the weight of the skid box and its contents, as well as the potential harm that it could cause, it cannot be said that the elevation differential was de minimis,” the court said.

Dan Corbin, director of research for the Professional Insurance Agents in Glenmont, said his agency and its over 2,500 members have been trying to get the statute amended for 15 years and would make it a lobbying priority in 2012.

“Interpretations of that statute are out of control. It’s not serving the purpose for which it was intended,” he said.
Corbin, who has also authored articles on the law said much has changed since it was enacted (in 1885) and noted it should be negligence-based, not subject to a vicarious liability standard.

“Things have changed since this was put into effect,” Corbin said. “We don’t need this statute for a select group of workers. It seems ridiculous that so many employees could lose an arm or a leg and be restricted to workers compensation benefits but a guy at a construction site gets to sue for general damages and pain and suffering.”

Corbin said that while the law in the 19th century was needed to protect workers, standards under the Occupational Safety and Health Administration and other protections cover it adequately today.

As a result of cases interpreting the law, insurance companies either don’t want to cover a construction project or charge exorbitant premiums, driving up the cost of the project, Corbin explained.

“We’re the only state where an owner and a general contractor can be held liable regardless of fault,” he said.

Rochester personal injury attorney Robert Brenna frequently works with Labor Law cases and disagreed with the insurance group’s assessment.

“The law says you have to keep the workplace safe,” said Brenna. “Workers aren’t responsible for a hazardous worksite they have no control over. If someone is injured because they didn’t utilize a safety device then the owners and the contractor are off the hook.

“What’s truly costing businesses [or the state, in this case] is their failure to provide adequate safety devices to insure the safety of the workers they rely upon daily,” Brenna said.

The so called “Scaffold Law” statute has been the subject of numerous appellate decisions in New York. Both Brenna and the court in Dipalma cited the Appellate Division case of Wilinski v. 334 East 92nd Hous. Dev. Fund Corp., 18 NY3d 1 (2010), for the proposition that that a defendant’s failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability.

In Blake v. Neighborhood Housing Service of NYC, 11 N.Y.3d 280 (2003), however, the Court of Appeals said not every case involving a fall from a scaffold or ladder will result in an award of damages.

“The point of Labor Law 240(1) is to compel contractors and owners to comply with the law, not to penalize them when they have done so,” the Court of Appeals said.