Labor Law Section 240 Unfair to Owners
This is second of two articles looking at the pros and cons of Labor Law Section 240.

By Gail Ritzert, Esq.

A month ago, in this column, plaintiff attorney Michael Gunzburg made some eloquent - if misguided - arguments on how Section 240 of the New York State Labor Law serves the public good and why it should remain undiluted.

I disagree. It is indeed the time to erode - or better yet, do away with - Labor Law Section 240, which attaches absolute liability to property owners and general contractors when a construction worker falls from a height. In many pieces of Section 240 litigation, the injured worker - through the largesse of the legislature and sympathetic judges - gets to skip right to the damages portion of his case, without proving whether the landowner or contractor was negligent.

On its surface, Section 240 sounds like a noble proposition, a risk-reward method of keeping work sites safe. What it truly is, however, is a way for a select class of injured workers to bypass the most critical portion of the civil justice process where a jury determines who is at fault for the injuries suffered. The law is particularly unfair to property owners, who hire experts to build on a site and have no control over workers.

I tell my clients - contractors, property owners and the carriers that insure them - with regard to Section 240 that the news may be generally bad but there is also some good news. The bad news is that 240 remains alive and kicking, with no real move in the legislature to amend or rescind. The good news is that some judges now realize that injured workers often create the dangerous conditions that give rise to their injuries. Through investigation, aggressive deposition and piecing together how construction accidents occur, we are sometimes able to get claims dismissed.

Let's take a closer look at what defense attorneys can do to help general contractors and property owners ward off Section 240 lawsuits.

The key is to establish that the plaintiff's negligence was the sole proximate cause of his accident. The legislature and the courts have set the bar fairly high on that, but not impossibly high. By deposing the plaintiff and eyewitnesses, by conducting an on-site investigation, and by scouring the medical records, we sometimes can show that the plaintiff's conduct caused the accident.

Here are some items to consider: Did the worker use makeshift scaffolding? Did he put a ladder on top of scaffolding to cut a corner? Was he provided safety equipment but chose not to use it? Does the plaintiff's description of what happened make sense? Do the medical records - and the plaintiff's medical history - support his story? If the owner or general contractor can establish that the incident was caused by the worker's recalcitrant behavior or through his sole negligence, the worker loses the protection of 240.

Granted, that counter-attack has a limited application, and succeeds only when the fact pattern supports it. Another defense that we have used successfully is to show that the activities that led to the accident are not protected by 240. Maintenance of a site or equipment, for instance, is outside 240's long reach, whereas repair of a building or structure is covered. Take a laborer working in an elevator shaft: If the elevator was not operational and the worker was repairing it when he fell and was injured, he might have a 240 claim. If the elevator was operational and the worker was cleaning or maintaining it, 240 would not apply. The same is true for night-time security of a construction site, or injuries that occur during an inspection to estimate cost.

The final items for contractors, owners, and sub-contractors to consider are indemnification contracts and insurance policies to see where liability and damages can be passed to another party or insurance policy. The best time to ensure the best coverage and the contract language is when the contract is drawn up, rather than after the accident. Consult your attorney, and make sure the contracts indemnification provision and insurance agreements will work to your benefit - and conform with all local, state and federal laws - so your exposure is limited if you are unfortunate enough to have an accident on your site.

Gail Ritzert, Esq., is a partner with the law firm Ohrenstein & Brown, with offices in Manhattan and Garden City, N.Y.