New York Labor Law Sections 240 and 241, the “Scaffolding Law” protects the rights of construction workers or visitors who suffer a fall or are struck by a falling object. Property owners and contractors must provide scaffolding and other safety measures to protect workers and visitors, including scaffolding, hoists, ladders, slings, hangers, pulleys, and ropes.
New York Scaffolding Law imposes strict or absolute liability for elevation-related injuries on general contractors, owners, and their agents whether or not they supervise or control the work. In other words, the duty is nondelegable. NY courts hold, contractors and property owners liable for workers’ “gravity-related injuries,” whether that injury occurred due to a fall from a step stool or a tall building. New York courts have found that liability under this law is “absolute,” meaning that businesses must pay regardless of whether the fall occurred due to the workers’ carelessness or reckless conduct. The contributing fault of an injured worker, such as failure to use provided safety equipment or gross negligence, is irrelevant. New York legislation has created a risk that is uninsurable.
In February 2020, the New York Court of Appeals Waldemar Biaca-Neto et al. v. Boston Road II Housing Development Fund Corporation et al the plaintiff observed his co-worker climb up several feet to a scaffold beam, unhook his safety belt, and enter a building through a window cut out. The plaintiff then attempted the same maneuvers but fell onto the scaffold platform. The plaintiff testified that he knew he was not supposed “to pass through there.” In denying the defendant’s motion to dismiss, the Court reasoned that the worker might not have known that he was expected to use the safety equipment because another worker had not followed safety protocol.
The Court abandoned its “choice” standard, meaning if the employee simply chooses not to use safety measures, then the employer is not liable. In replaced it with four criteria that must be met in order to grant a defendant’s motion to dismiss. To relieve a defendant of liability, the injured plaintiff must :
(1) have adequate safety devices available,
(2) knew both that the safety devices were available and he is expected to use them,
(3) chose for no good reason not to do so, and
(4) would not have been injured had he not made that choice.