Common sense prevails in latest Labor Law case.

Construction industry leaders have welcomed the recent decision by the New York Court of Appeals ruling in favor of a construction contractor in a Scaffold Law case, but say a permanent solution is still needed.

The "absolute liability" clause in the Scaffold Law or 240 Labor Law makes contractors liable for workplace injuries. Many cases have been settled out of court, because the clause bars the contractor from defending himself in court, whether the worker could be found negligent or not. New York State is the only state that has the "absolute liability" clause in its labor law. In a recent case of Cahill v. Triboro Bridge and Tunnel Authority, the highest court further clarified the limits of the Scaffold Law and the applicability of the "recalcitrant worker" defense, said Henry L. Goldberg, Esq., Goldberg & Connolly.

"In effect, New York's highest court has reintroduced concepts of common sense to the recalcitrant worker defense and continues its recent trend to reassess the "strict liability" aspects of the Scaffold Law," said Goldberg.

Cahill was a construction worker employed in the rehabilitation of the Triboro Bridge. The general contractor and Cahill's employer held regular safety meetings, which included frequent instruction on the proper use of safety lines. Several weeks before the accident, Cahill's supervisor "caught him" climbing without using a safety line.

On the day of the accident, Cahill was working on the upper part of a "form" applying grease from a bucket to certain rods. He was in the process of climbing to the next level and disengaged the position hook when he fell 10-15 feet and was injured.

Cahill sued the general contractor and the owner, Triboro Bridge and Tunnel Authority.

The Appellate Division, First Department, affirmed this decision but asked the Court of Appeals to decide whether the recalcitrant worker defense applied.

The Court of Appeals reversed the grant of summary judgment to Cahill and directed that the question of Cahill's culpability under a recalcitrant worker defense be submitted to a jury at trial. Last year, bills were introduced in both the state Senate and Assembly that would amend the civil practice law to allow construction contractors to present a defense in workers' injury cases. Neither bill made it out of committee, even after nearly 450 construction professionals lobbied 150 legislators asking for their support.

"In a nutshell, the decision is helpful, but it doesn't solve the problem," said Jeff Zogg, executive director of The General Contractors Association of New York. "We are going to continue with our legislative efforts because a long term solution is necessary. This case simply leaves the contractor the means to defend themselves."

Zogg said similar bills will be introduced into both houses within the month. Whether there will be another lobby day is still undecided, he said.

In New York State insurance costs are dramatically higher than other parts of the country, if contractors are actually unable to get insurance coverage.

"The court decision is definitely a boost in terms of controlling insurance costs for the construction industry," said Lou Coletti president of the Building Trades Employers' Association.

"But I don't think it means we should stop our legistlative efforts for a permanent solution."

To help defray insurance costs TSC, Total Safety Consulting, LLC has been a leader in advancing effective safety and loss control management by identifying and controlling the causes of accidents before they become injuries, fatalities and claims.