Construction site inquiries: above and below the scaffold.

An ever expanding area of public liability exposure is the owner and contractor's liability for construction site accidents.

The more that owners and contractors are held liable for construction industry accidents, the higher insurance rates will go, and the more that litigation will spring forth under the contractual indemnity provisions of the general contract and subcontracts. The laws governing liability for construction accidents should be of serious concern to both the owner and contractor, from both insurance and contract indemnity considerations.

The so called "scaffolding statute" has long been in effect in New York, but in recent years the courts have expanded the scope of liability for owners where construction site employees are injured. The "scaffolding statute", New York Labor Law section 240(1), imposes absolute liability on the owner or general contractor and/or agent of a building undergoing construction, repairs or alterations and that in the ... "erections, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

The courts consistently hold that Labor Law section 240(1) imposes absolute liability on an owner or general contractor if there is a violation and the injuries caused to an employee are the result of failure to provide the threshold safety requirement set forth in this statute. An owner cannot assign this duty and remains liable for any violation even if he/she had virtually no control of the work being performed.

Until recently, an issue arose as to whether a worker must be working at elevated height or be struck from an object falling from an elevated height for the scaffolding statute to be applicable. In a recent New York Court of Appeals case, Rocovich vs. Consolidated Edison Co., the court resolved the so called elevation requirement and held that being above or below the scaffold is not always required for an employee to be granted the protection of the "scaffolding statute."

In Rocovich, although the court acknowledged that Labor Law 240(1) describes safety devices to protect employees working at elevated heights or from materials that have to be lifted or hoisted, the statute's intent is not restricted to injuries to workers at heights or objects falling from elevated work sites.

For example, a case which predated the Rocovich decision, held that an employee who was injured when he was struck by a platform that had been suspended over an elevator shaft in which he was working, held that the employee would not benefit from Section 240(1) protection because he was not working at an elevated height when the accident occurred.

The impact of the Rocovich decision has broadened the scope of construction site injuries that are covered under Labor Law 240(1) and it appears that the "above or below" the scaffold requirement is no longer the sole criteria to establish liability. Owners and general contractors should be aware of this decision because this law provides for absolute liability on the owner or general contractors. Furthermore, notice and contributory or comparative negligence is not a defense and even if the injuries are due to the worker's own negligence, the owner or general contractor remains liable if the statute was violated.

The owner and contractor should be careful to check his contract terms to make sure that the appropriate indemnity provisions are in place, because lack of negligence is not a defense.