It is hard to imagine that the New York State Legislature could have envisioned the long-lasting effects of Labor Law §240 (the Scaffold Law) when it was enacted in 1885. At the time, the key regulatory frameworks that modern construction units rely on (i.e., OSHA and workers’ compensation) did not yet exist to protect workers at elevated heights. Over the years, both the federal and state governments have introduced additional independent and interlocking layers of protections for construction workers. In turn, most states have repealed absolute liability statutes similar to Labor Law §240. Yet New York has remained steadfast. As things stand, New York is the only state that maintains a law of this draconian effect.
Labor Law 240(1) provides, in pertinent part, that: “All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected 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.”
Simply put, the Scaffold Law imposes strict liability upon owners and general contractors for gravity-related accidents. Owners and general contractors are also exposed to 9% annual interest on any resulting judgment. The only two defenses available to shield themselves from liability are:
(1) sole proximate cause, and (2) recalcitrant worker, which are notoriously difficult to establish. Incidents that would qualify as workers’ compensation claims in other states often result in sevenfigure verdicts after protracted litigation in New York.
The best defense for an owner or general contractor often lies in risk transfer. It is for this reason that construction professionals, carriers, and counsel must work in close coordination to ensure that contracts include the requisite hold harmless, indemnity, and additional-insured clauses, with the necessary savings clauses to effectuate early and successful risk transfer. Moreover, prompt investigation and documentation must occur immediately after an accident. In recent years, contract language has evolved from requiring proof of negligence to the broader “arising out of” language now commonly found in the majority of owner-prime contractor-subcontractor agreements across the state.
Even then, a successful pass-through may not fully insulate the upstream parties from significant exposure because of the absolute liability imposed by the Scaffold Law. Numerous challenges can arise, from eroding policy limits to obscure exclusions in a subcontractor’s policy. So, what are owners/general contractors to do?
Perhaps it is time to change the narrative and advocate for the repeal of the Scaffold Law.
Admittedly, doing so would be no small task. Efforts to repeal Labor Law §240 have been few and far between and have been met with strong opposition in Albany. But, as the saying goes, “Some see things as they are and say, ‘Why?’ I dream things that never were and say, ‘Why not?’”
To succeed, advocates for repeal may need to adopt a strategy long employed by the plaintiffs’ bar: changing the narrative. Since the early 2000s, plaintiffs’ attorneys have rebranded themselves from “ambulance chasers” to “champions of justice.” Neither stereotype is entirely fair or accurate, but the shift has been undeniably effective. The defense bar must learn to reframe the conversation from “insurance company greed” and “blaming the victim” to an economic issue that impacts every New Yorker.
The cost of maintaining Labor Law §240 has had a chilling effect on the state’s economy. To the average resident, it may appear to be an isolated insurance or construction industry problem. That could not be further from the truth. In reality, the law’s survival, especially in a post-COVID-19 New York, affects virtually every citizen.
The trickle-down effect is both tangible and underreported. Insurance premiums in New York have skyrocketed due to the liability imposed by the Scaffold Law. Many insurers have stopped writing commercial general liability policies in New York altogether because of the Scaffold Law’s onerous effects. This comes at a time when the state desperately needs improvements to infrastructure to support a growing population, foster a more dynamic economy, and address deepening wealth disparities.
These increased insurance costs must be baked into project budgets, driving up the cost of construction. In commercial contexts, those increases are passed along to businesses, which then raise prices or cut wages and jobs to compensate. In residential developments, the impact is even starker: Higher insurance costs directly contribute to higher rents and home prices, collectively deepening New York’s affordable housing crisis.
Compounding matters, the state’s court system is inundated with Labor Law §240 cases, tying up resources and taxpayer dollars in years of litigation.
The industry’s best chance at reform is to reframe this issue as a citizens’ issue; not merely an insurance issue. Lower construction costs could lead to more affordable housing and goods, job growth, and reduced tax burdens for litigationheavy court dockets. These benefits would be especially meaningful to historically marginalized and underrepresented communities who bear the brunt of New York’s high cost of living.
In an era defined by inflation and economic volatility, we must ask: Who is really benefiting from the continued existence of Labor Law §240? Certainly not the tenants struggling to afford rent, the small businesses grappling with higher overhead, or the overburdened local state courts.
It is time to change the conversation. The Scaffold Law may have served a vital purpose in the 19th century, but its modern application is out of step with today’s regulatory environment and technology. The law is no longer about worker safety, but rather about liability, litigation, and economics. And it is costing New Yorkers more than they realize.
As members of the construction and legal communities, we must do more than simply manage risk. We must work to reduce it. That starts with calling for meaningful reform, reeducating the public, and urging our elected officials to consider not just what is politically expedient, but also what is best for the people.
The citizens of New York deserve a fairer, more sustainable system—one that promotes both safety and economic opportunity. Let’s do our part so that, one day, history may look back and thank us for finally changing the narrative and righting what has become an obvious wrong.
About the Authors:
Edoardo Maffia is senior associate attorney at Barry McTiernan & Moore. emaffia@bmmfirm.com