MEMORANDUM IN SUPPORT
On Assembly Labor Committee
May 20, 2008
A2528 (Morelle)/ S4317 (Volker) - An ACT repealing strict liability and providing for a comparative negligence standard in specific elevation related accident cases.
NY Tort Reform Now.org, a broad based coalition of businesses, professionals, municipalities, not-for-profits, insurers, and concerned citizens urges SUPPORT for the above referenced bill. The legislation substitutes a comparative negligence standard rather than strict liability, for actions arising under Labor Law sections 240 and 241, respecting elevation related claims asserted by recalcitrant workers.
New York State is alone in the nation in retaining a century old law called the Scaffold Act, familiarly known as sections 240 and 241. This law imposes a standard of absolute liability on all building owners, contractors and subcontractors where a worker is injured as the result of an elevation related construction/maintenance accident. The interpretation by the courts of this standard of absolute liability means the plaintiff must simply establish that the facts of the case fall within the definition of an elevation related accident. The plaintiff is not required to prove negligence. At the same time there is no defense admissible by the construction firm or project owner. As a result, insurance costs throughout New York State and New York City in particular are measurably higher by factors surpassing 1000% for some construction classes, and in fact many insurance companies refuse to write general liability policies in New York State. The increased cost for construction in New York is then past on by the contractor and project owner to all New Yorkers reducing business opportunities and attendant employment.
What makes these sections of the law such a significant problem is that they impose a condition of absolute liability on the owner and/or contractor for injuries proximately caused, without regard to either negligence or comparative negligence and irrespective of any lack of control or direction of the work. No other state recognizes, either by legislation or under the common law, such a cause of action. The State of Illinois, effective in February 1995, repealed its ‘Structural Work Act,’ which was comparable to the New York’s law.
More than a century ago when the strict liability standard was first imposed, New York applied a contributory negligence standard in personal injury cases. The contributory negligence rule entirely barred a recovery if a plaintiff was contributorily negligent to any extent. Tort law has radically evolved over the past century and the rationale for a strict liability standard has been substantially eliminated. While a comparative negligence standard is not appropriate in all cases, it generally proves fair to both sides, and with respect to elevation related accidents its application is long overdue.
For all the foregoing reasons, it is urged that this bill be approved.
Respectfully,
Mark C. Kriss