Panel 1 – Introduction, Materials

Table of Contents

Introductory Primer | By Deborah Kerzhner

Bill Text of “An act to amend the civil practice law and rules, in relation to the applicability of certain provisions with respect to persons injured in the use of scaffolding and other devices for use by employees”

Moya Construction Insurance Transparency Act, text

Primer on Public Policy Analysis | By Terri Matthews

Introductory Primer

Constructive Perspectives:

Are New York’s Construction Safety and

Insurance Laws Serving the Public?

Deborah Kerzhner

March 13th, 2014

Table of Contents Construction Safety ....................................................................................................................................................... 2

Workers’ Compensation ............................................................................................................................................ 2

§ 200 – Safe Work Environment Statute ................................................................................................................... 3

§ 240(1) – “Scaffold Law”, Elevation-Related Risk Statute...................................................................................... 4

§ 241(1)-241(5) – Safety Measures for Openings in Floors and Shafts..................................................................... 6

§ 241 (6) – Construction, Excavation and Demolition Work Statute ........................................................................ 6

Summary of Labor Law §§ 200, 240, 241 ................................................................................................................. 9

Construction Insurance ................................................................................................................................................ 10

Wrap-up Insurance .................................................................................................................................................. 10

Provisions .................................................................................................................................................................... 11

Labor Law, Article 10. Building Construction, Demolition And Repair Work, § 240 ........................................... 11

Labor Law, Article 10. Building Construction, Demolition And Repair Work, § 241 ........................................... 11

Insurance Law, Article 25. Prohibitions Against Controlled Business, § 2504 ...................................................... 12

Insurance Law, Article 25. Prohibitions Against Controlled Business, § 2505 ...................................................... 13

Primer | Constructive Perspectives: Are New York’s Construction Safety and Insurance Laws Serving the Public?

2 2

Construction Safety

Workers’ CompensationWorkers’ Compensation is a form of insurance providing lost wages and medical benefits to

employees injured in the course of employment.1 Under New York’s Worker’s Compensation

Law, the injured worker’s monetary award is calculated according to a set compensation scheme

and provided regardless of fault. Generally, when both the plaintiff and the defendant are acting

within the scope of their employment, Workers’ Compensation is the worker’s sole, exclusive

legal remedy against the employer.2

Exclusivity Provisions and the Labor Law

The Labor Law sections discussed below, §§ 200, 240, 241, do not override and are subject to

the exclusivity provisions of the Workers’ Compensation Law.3 Therefore, if an owner or

contractor otherwise liability under the Labor Law is an employer or a co-employee of an injured

worker, the injured worker can only recover under Workers’ Compensation.4

The Labor Law allows injured workers to seek additional compensation from the owners,

contractors and other parties that are not the worker’s employer. (As a practical matter, these

third parties often seek indemnity from the employer.)

1 N.Y. Work. Comp. Law §§ 1 et seq.

2 N.Y. Work. Comp. Law § 29 (6): “The right to compensation or benefits under [the Workers’ Compensation Law],

shall be the exclusive remedy to an employee...”; Macchirole v. Giamboi, 97 N.Y.2d 147, 150, 762 N.E.2d 346, 348

(2001) (“[A] defendant, to have the protection of the exclusivity provision, must have been acting within the scope

of employment and not have been engaged in a willful or intentional tort.”)(internal citations omitted)

3 Bardere v. Zafir, 102 A.D.2d 422, 423, 477 N.Y.S.2d 131, 133 (App. Div. 1st Dep’t 1984) (“This Labor Law [§

200] codification of the requirement to provide a safe place to work does not overrule, and indeed, is subject to the

exclusivity provisions of the Workers’ Compensation Law.”); Heritage v. Van Patten, 90 A.D.2d 936, 457 N.Y.S.2d

912 (3d Dep’t 1982), aff’d, 59 N.Y.2d 1017, 466 N.Y.S.2d 958, 453 N.E.2d 1247 (1983) (holding that a landowner

who was also the president and sole shareholder of plaintiff’s employer was, for purposes of workers’ compensation,

a co-employee, and therefore immune from the liability imposed by Labor Law § 241 for the worker’s injuries).

4 Even though, as employee or co-employee, the owner or contractor would not subject to a suit under the Labor

Law provisions, they still owe the various duties described in Labor Law §§ 200, 240, 241. Lindner v. Kew Realty

Co., 113 A.D.2d 36, 43, 494 N.Y.S.2d 870, 874-75 (App. Div. 2d Dep’t 1985) (“[T]he exclusive remedy of an

employee for injuries sustained through the negligence of another in the same employ is workers’ compensation […]

Where an owner is also the injured plaintiff’s employer, the rule on liability is, in net, altered, but this is not because

the duties imposed on the owner by Labor Law §§ 240 and 241 are in any way affected by the exclusive remedy

provisions of the Workers’ Compensation Law. Rather, the obligation of the owner to provide a safe workplace is

simply held to be an inseparable subcategory of that complex of obligations which arise in connection with the

employment relation, and the liability for such violations is said to be merged with and subsumed by the employer’s

general liability under the Workers’ Compensation Law, which is made ‘exclusive and in place of any other liability

whatsoever’ by section 11 thereof.”)(internal citations omitted).

Primer | Constructive Perspectives: Are New York’s Construction Safety and Insurance Laws Serving the Public?

3 3

§ 200 – Safe Work Environment Statute New York Labor Law § 200 codifies the common law duty for an owner or contractor to use

reasonable care and provide employees with a safe work environment.5

Cases under Labor Law § 200 can generally be grouped into two broad categories:6

(a) injuries resulting from dangerous or defective work site conditions, and

(b) injuries resulting from the manner or methods in which work is performed.

The owner or contractor will be held liable for damages resulting from the first category—

premises condition—when they:

(i) caused the accident,

(ii) had actual or constructive notice of the dangerous condition that caused the accident,

or

(iii) exercised supervision or control over the work being performed.7

Under the second category—the manner of work—the owner or contractor’s notice of the unsafe

manner in which the work was performed is insufficient to establish liability, rather, they must

have the authority to supervise or control the work in order to be held liable.8

Unlike §§ 240 and 241(1)-241(5), comparative negligence is available as a defense under this

section.9 5 Jock v. Fien, 80 N.Y.2d 965, 967, 605 N.E.2d 365, 366 (1992) (stating that Labor Law § 200 “codifies the

common-law duty of an owner or employer to provide employees with a safe place to work”).

6 While there are other, lesser categories, these two are the primary categories. Ortega v. Puccia, 57 A.D.3d 54, 61,

866 N.Y.S.2d 323, 329 (App. Div. 2d Dep’t 2008) (explaining the two broad categories under Labor Law § 200);

Nolan v Bovis Lend Lease, Inc., 36 Misc. 3d 1219(A), 1219A (Sup. Ct. 2012)(recognizing the distinction between

injuries stemming from a dangerous condition on the premises and injuries resulting from the means and methods

utilized by an owner or contractor and holding that only in the later category do courts require “proof that an owner

had control or input over how the injury-producing work was done as a precondition to asserting a claim.”)

7 Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323, 329 (App. Div. 2d Dep’t 2008; Kerins v. Vassar College,

15 A.D.3d 623, 626, 626, 790 N.Y.S.2d 697, 700 (App. Div. 2d Dep’t 2005)(”[I]f the plaintiff was injured in whole

or in part as a result of the existence of a dangerous condition on its property, of which it had actual or constructive

notice, it may be held liable for the plaintiff’s injuries under Labor Law § 200 and common-law

negligence irrespective of whether [the defendant] supervised the plaintiff’s work.”); Shipkoski v. Watch Case

Factory Assocs., 292 A.D.2d 589, 590, 741 N.Y.S.2d 57 58 (App. Div. 2d Dep’t 2002) (“A landowner may be held

liable for a violation of Labor Law § 200 or in common-law negligence for injuries allegedly suffered by a worker

due to a defective condition on its premises if it had actual or constructive notice of the condition or exercised

supervision or control over the work being performed") (emphasis original).

8 Comes v. N.Y. State Elec. & Gas Corp., 82 N.Y.2d 876, 877 (1993)(“Where the alleged defect or dangerous

condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no

liability attaches to the owner under the common law or under Labor Law § 200.”)

Dennis v. City of New York, 304 A.D.2d 611, 612, 758 N.Y.S.2d 661, 664 (App. Div. 2d Dep’t 2003)(“The

retention of the right to generally supervise the work, to stop the contractor’s work if a safety violation is noted, or to

ensure compliance with safety regulations, does not amount to the supervision and control of the work site necessary

to impose liability on an owner or general contractor pursuant to Labor Law § 200.”)

9 Drago v. New York City Transit Auth., 227 A.D.2d 372, 373, 642 N.Y.S.2d 83,84 (App. Div. 2d Dep’t 1996)

(“Comparative negligence is a viable defense to a cause of action asserted under either Labor Law §§ 200 or 241

(6).”)

Primer | Constructive Perspectives: Are New York’s Construction Safety and Insurance Laws Serving the Public?

4 4

§ 240(1) – “Scaffold Law”, Elevation-Related Risk Statute Labor Law § 240 establishes a nondelegable duty10 for contractors and property owners (except

one-to-two family homeowners) to provide safety equipment such as scaffolds and ladders to

protect employees from elevation related risks.11

Labor Law § 240 carries strict liability;12 the only elements that need to be shown to prevail on a

claim are:

i. a safety device was inadequate, and

ii. this inadequacy was a proximate cause of the elevation-related injury.13

Siragusa v. State, 117 A.D.2d 986, 986-987, 499 N.Y.S.2d 533, 534 (App. Div. 4th Dep’t 1986)(“The claims

pursuant to Labor Law §§ 200, 241 (6) are subject to the defense of comparative negligence and require inquiry into

the correlation of negligence and comparative negligence in causing the injuries complained of.”)

Accordingly, Panetta v. Paramount Communs., 255 A.D.2d 568, 681 N.Y.S.2d 85 (App. Div. 2d Dep’t 1998)

(“Liability under Labor Law § 200 and common-law negligence will not attach when the dangerous condition

complained of was open and obvious.”)

10 Kelly v. Diesel Construction 35 N.Y.2d 1 (1974).

11 Labor Law § 240 is “designed to prevent those accidents in which a scaffold, hoist, stay, ladder or other protective

device proves inadequate to protect a worker from harm directly flowing from the application of the force of gravity

to an object or person.” Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 604, 922 N.E.2d 865, 867 (2009)

citing Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 618 N.E.2d 82, 86 (1993).

In 1980 the legislature added the exception for one-to-two family homeowners to mitigate the harshness of the strict

liability rule. See Van Amerogen v. Donnini, 78 N.Y.2d 880, 577 N.E.2d 1035 (1991).

Professional engineers and architects are exempt under Labor Law § 240, unless they are directing the work being

performed. Labor Law § 240 (1).

12 See Sanatass v. Consolidated Investing Co., Inc., 10 N.Y.3d 333, 887 N.E.2d 1125 (2008) (referring to Labor Law

§ 240 as a “strict liability” provision.)

The term “strict liability” is used differently in the context of Labor Law § 240 than in other contexts such as

product liability or keeping wild animals. Often, the term “strict liability” can mean “liability without fault,”

meaning, a person can be held automatically liable for causing injury even though the activity violates no law and is

carried out with the utmost care. However, an accident alone does not establish a Labor Law § 240 violation. Courts

have held that “strict liability” in the context of Labor Law § 240 is necessarily contingent on a violation of section §

240 (1). Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 288-290, 803 N.E.2d 757, 761-763

(2003).

The nature of “strict liability” in the context of Labor Law 240 is described in the following way:

“[T]his section creates a liability that is strict, or absolute, in two senses: the duty it imposes is

nondelegable, and thus contractors and owners are liable under the statute whether or not they supervise or

control the work; and where an accident is caused by a violation of the statute, the plaintiff’s own

negligence does not furnish a defense. It is still necessary, however, for the plaintiff to show that the statute

was violated and that the violation proximately caused his injury. As we held in Blake, where a plaintiff’s

own actions are the sole proximate cause of the accident, there can be no liability.”

Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39 (2004)

13 Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287, 803 N.E.2d 757, 771 N.Y.S.2d 484).

(holding that to prevail on a cause of action alleging a violation of Labor Law § 240(1), a plaintiff must establish

that the statute was violated, and that the violation was a proximate cause of his or her injuries.)

Liability will not be found if the inadequate safety device did not cause the injury. Narducci v Manhasset Bay

Assoc., 96 NY2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085. (“Not every worker who falls at a construction site,

and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240

Primer | Constructive Perspectives: Are New York’s Construction Safety and Insurance Laws Serving the Public?

5 5

Labor Law § 240 also carries absolute liability; comparative negligence is not a defense and the

owner’s or contractor’s supervision, control, or actual notice are not elements of the claim.14

Even if an owner did not contract or benefit from the work, they can still be held liable, as long

as the exceptions listed below do not apply.15

Even though comparative negligence is not a defense to a claim under Labor Law § 240, where

the injured worker’s negligence is the sole proximate cause of the injury, the owner or contractor

would have no liability.16 Additionally, the recalcitrant worker defense is available where

adequate safety equipment is available , the injured worker knew he was expected to use the

safety equipment, but the injured worker refused to use the equipment and had no good reason

for choosing to do so.17

Elevation Related Risk

To be considered injury caused by an elevation related risk, the injury must have a direct

connection to dangers posed by risks associated with gravity—such as a falling worker or a

(1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to

use, or the inadequacy of, a safety device of the kind enumerated therein.”)

14 Claims brought under section Labor Law § 240 will not be reduced by the plaintiff’s own negligent acts, no matter

how overwhelming they may be. See Haimes v. New York Tel. Co., 59 A.D.2d 813, 399 N.Y.S.2d 76 (3d Dep’t

1977), aff’d, 46 N.Y.2d 132, 412 N.Y.S.2d 863, 385 N.E.2d 601 (1978); Lindner v. Kew Realty Co., 113 A.D.2d 36,

42-43 (App. Div. 2d Dep’t 1985)(“[A]n owner’s duty to ensure that the scaffolding employed at a worksite is

constructed, placed, and operated so as to give proper protection to the employees (Labor Law § 240) is wholly

independent of the owner’s actual control or supervision of the workplace”).

15 Even if an owner did not contract or benefit from the work, they can still be held liable. Gordon v. Eastern

Railway Supply, 82 N.Y.2d 555, 626 N.E.2d 912 (1993). Only one-to-two family homeowners are excluded from

the regulations, unless they are exercising control over the work.

16 If the injured worker was the sole proximate cause of their injury, no liability will be found under Labor Law §

240. See Marin v. Levin Props., LP, 28 A.D.3d 525, 812 N.Y.S.2d 645 (App. Div. 2d Dep’t 2006); Chimborazo v.

WCL Associates, 37 A.D.3d 394, 829 N.Y.S.2d 635 (2d Dep’t 2007); Anderson v. Schul/Mar Const. Corp., 212

A.D.2d 493, 212 A.D.2d 493 (2d Dep’t 1995) (no liability where worker missed a wrung on the ladder because he

was holding a coffee cup in one hand and breakfast in the other); cf. Morin v. Machnick Builders, Inc., 4 A.D.3d

668, 772 N.Y.S.2d 388 (App. Div. 3d Dep’t 2004) (holding that the worker’s actions of placing a ladder on plywood

over ice merely makes the worker contributory negligent; worker is not sole proximate cause of the accident.)

17 Gallagher v. The New York Post, 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732 (2010) (“Liability under § 240(1) does not

attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in

the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose

not to do so, causing an accident”); Jastrzebski v. North Shore Sch. Dist., 223 A.D.2d 677, 679-680, 637 N.Y.S.2d

439, 441-442 (App. Div. 2d Dep’t 1996) (finding that the recalcitrant worker defense applied because the statutory

protections of Labor Law § 240 do not extend to workers who have safety equipment available but do not use it, and

explaining that the defense requires a showing that the injured worker refused to use the safety devices that were

provided by the owner.)

Primer | Constructive Perspectives: Are New York’s Construction Safety and Insurance Laws Serving the Public?

6 6

falling object.18 An injury sustained while elevated is not considered an elevation-related risk

under Labor Law § 240.19

Protected Parties

Only employees—not volunteers or the public—engaged in the construction, demolition, repair,

alteration, cleaning and other maintenance related work are protected by Labor Law § 240.20

§ 241(1)-241(5) – Safety Measures for Openings in Floors and Shafts The first five sections of Labor Law § 241 detail the required safety and planning measures

necessary to prevent people and things from falling in floor openings, open spaces, and shafts.

Like Labor Law § 240, these sub-sections carry absolute liability and are nondelegable.21 To

prevail on a claim, a plaintiff must show that there was a violation of the statute and that that

violation was the proximate cause of the employee’s injuries.22

§ 241 (6) – Construction, Excavation and Demolition Work Statute Labor Law § 241 (6) offers more broad-based protection than Labor Law § 240 and has been

referred to as the “catch-all” section for construction accidents. This sub-section establishes a

duty for owners and contractors (except owners of one-to-two family dwellings) to provide

reasonable and adequate protection and safety to employees and individuals lawfully frequenting

a construction site. Labor Law § 241 (6) establishes a cause of action for a breach of a

regulation promulgated by the Commissioner which sets forth a specific, rather than general,

safety standard.23

18 See Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 583 N.E.2d 932, 934 (1991) (“The contemplated

hazards are those related to the effects of gravity where protective devices are called for either because of a

difference between the elevation level of the required work and a lower level or a difference between the elevation

level where the worker is positioned and the higher level of the materials or load being hoisted or secured.”)

19 Aiross v. Curtis Palmer, 81 N.Y.2d 494, 618 N.E.2d 82 (1993) (holding that disabling back strain acquired while

working on at an elevated site fails to establish a claim under Labor Law § 240 as that section was designed to

prevent injuries in which the scaffold, hoist, stay, ladder, or other protective device proved inadequate to shield the

injured worker from harm directly flowing from the application of the force of gravity to an object or person).

20 See Joblon v. Solo, 91 N.Y.2d 457, 465, 695 N.E.2d 237, 241 (2004) (holding that Labor Law § 240 is only

applicable if the work being performed results in significant physical change to the building or its components.)

21 See Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 160, 160 433 N.E.2d 115, 118 (1982) (reh’g denied, 56 N.Y.2d 805

(1982); remand 89 A.D.2d 626, 452 N.Y.S.2d 1021 (3d Dept. 1982)) (contrasting the first five sections of Labor

Law § 241 to Labor Law § 241 (6) with regard to negligence as a matter of law and the availability of comparative

or contributory negligence as a defense).

22 Bland v. Manocherian, 66 N.Y.2d 452, 459, 488 N.E.2d 810, 812 (1985).

23 Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-505, 618 N.E.2d 82, 86-88 (1993).

Primer | Constructive Perspectives: Are New York’s Construction Safety and Insurance Laws Serving the Public?

7 7

The following tables compare Labor Law § 241 (6) with the Labor Law sections previously

discussed. Of note, the tables show that comparative negligence is a defense to a claim under

Labor Law § 241 (6).

Comparison of Labor Law § 240 (the Scaffold Law) with Labor Law § 241(6)

Labor Law § 240 Labor Law § 241(6)

Subject Matter Elevation-related safety tasks Breach of a regulation promulgated by the

Commissioner which regulation sets forth a

specific standard

Availability of

Comparative

Negligence as a

Defense 24

Not available as a defense; Absolute

Liability

Comparative negligence is available as a defense25

Parties covered Only employees Employees and all those who are “lawfully

frequenting” a construction site are covered.26

24 See e.g. Spages v. Gary Null Assocs., Inc., 14 A.D.3d 425, 788 N.Y.S.2d 355, 356 (1st Dep’t 2005) (comparative

negligence did not apply to a Labor Law § 240 (1) claim, but did apply to a claim under Labor Law § 241(6);

therefore, a question as to plaintiff’s culpability existed when there was evidence that plaintiff equipped a scaffold

with a knotted, non-stress floorboard that snapped under his weight).

25 Misicki v. Caradonna, 12 N.Y.3d 511, 515, 909 N.E.2d 1213, 1216 (2009) citing Long v. Forest-Fehlhaber, 55

N.Y.2d 154 (1982); Sacchetti v. Vasile Constr. Corp., 254 A.D.2d 777 (App. Div. 4th Dep’t 1998) (holding that

comparative negligence is a defense to liability under Labor Law § 241(6), “since a violation of the administrative

rules adopted pursuant to the authorization of subdivision 6 of section 241 of the Labor Law cannot rise to the level

of negligence as a matter of law, contributory negligence was, and comparative negligence now is, a defense to an

action based on such a dereliction.”)

26 Labor Law § 241(6) expressly provides the Board with authority to enact rules to carry into effect the provisions

of this subdivision. The Board has defined the term “persons lawfully frequenting” in 12 N.Y.C.R.R. 23-1.4 (39) as

“[a]ny person exercising a lawful right of presence or passage in any area, including persons on a public sidewalk,

street or highway.”

Primer | Constructive Perspectives: Are New York’s Construction Safety and Insurance Laws Serving the Public?

8 8

While both Labor Law § 200 and Labor Law § 241(6) have broad subject matter, and do not

carry absolute liability, they differ in several respects, as described below:

Comparison of Labor Law § 200 (codification of common law negligence) with Labor Law § 241(6)

Labor Law § 200 Labor Law § 241(6)

Subject Matter Common Law Negligence: Imposes a

duty to provide a safe place to work

for construction workers

Cause of action for the breach of a

regulation promulgated by the

Commissioner which regulation sets forth

a specific standard

Availability of Comparative

Negligence as a Defense

Yes, Comparative Negligence is a

defense

Yes, Comparative Negligence is a defense

Standard of Care Only requires a showing of common

law negligence and lack of reasonable

care

A plaintiff must allege that the owner or

contractor violated a regulation that sets

forth a specific standard are of conduct as

promulgated by the Commission of the

Department of Labor; a simple recitation

of common-law safety principles is

insufficient.27

Authority and Control /

Notice

Follows the common law in that the

duty is only owed by those who have

the authority to control the work or

actually do so

Imposes a duty upon contractors, owners,

and their agents irrespective of whether

they control the work 28 or have notice29

Delegable duty ? This duty is nondelegable.30

27 St. Louis v. Town of N. Elba, 16 N.Y.3d 411, 414, 947 N.E.2d 1169, 1170 (2011)(“In order to state a claim under

section 241 (6), a plaintiff must allege that the property owners violated a regulation that sets forth a specific

standard of conduct and not simply a recitation of common-law safety principles”)

28 St. Louis v. Town of N. Elba, 16 N.Y.3d 411, 413 (2011) (“[P]laintiff need not show that defendants exercised

supervision or control over the work site in order to establish a right of recovery under section 241(6).”)

29 See Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 961 N.Y.S.2d 91 (App.

Div. 1st Dep’t 2013) (In claims brought under Labor Law § 200, Labor Law § 240, and Labor Law § 241, “actual

and constructive notice” is brought as a defense against the claim under Labor Law § 200, but not raised against the

claims under Labor Law §§ 240 or 241).

30 Labor Law § 241 (6) "imposes a nondelegable duty upon owners and contractors to provide reasonable and

adequate protection and safety to construction workers." Comes v. N.Y.State Elec. and Gas Corp., 82 N.Y.2d 876,

878, 631 N.E.2d 110, 111 (1993); Kemp v. Lakelands Precast, Inc, 84 A.D.2d 630, 444 N.Y.S.2d 274 (3d Dep’t

1981) , modified, 449 N.Y.S.2d 710 (1982) (“They may delegate the work to others but they may not delegate their

ultimate responsibility.”)

Primer | Constructive Perspectives: Are New York’s Construction Safety and Insurance Laws Serving the Public?

9 9

Summary of Labor Law §§ 200, 240, 241

Provision Labor Law § 200 Labor Law § 240 Labor Law §

241(1)-241(5)

Labor Law § 241(6)

Subject

Matter

Common Law

Negligence

Elevation Related

Risks

Safety for Openings

in Floors and Shafts

Violation of a

specific safety

regulation

Supervision &

Control or Notice

Necessary to Find

Liability

Yes

No

No

No

Absolute Liability No

Yes

Yes

No

Nondelegable Duty Yes

Yes

Yes

Primer | Constructive Perspectives: Are New York’s Construction Safety and Insurance Laws Serving the Public?

10 10

Construction Insurance

Wrap-up Insurance Overview

“Wrap Up Insurance” refers to an insurance policy, or series if policies, written to insure all of

the individuals and entities working on a specific construction project for costs arising from that

project. “OCIPs,” Owner Controlled Insurance Policies, are wrap-up insurance policies

sponsored and implemented by the project owner. “CCIPS”, Contractor Controlled Insurance

Policies, are wrap-up insurance policies sponsored and implemented by the

contractor/construction manager.

Under New York law, wrap-up insurance is available for private construction projects, but is

prohibited for most public construction projects.31

The owner and general contractor may not charge the subcontractor for the premium or related

charge of the wrap-up insurance. Rather, the owner or general contractor is permitted to require

the bidding subcontractor to provide a credit in its bid reflecting the amount the bidding

contractor or subcontractor would otherwise add if providing its own insurance. The owner or

contractor purchasing the wrap-up insurance cannot engage in “cost sharing”-- changing the

amount of credit that a contractor or subcontractor used in its bid for a nonpublic construction

project or otherwise charging the subcontractor for the charge of the wrap-up insurance.32

In contrast, if a public construction project falls within an exception listed in N.Y. Ins. Law §

2504 then the restrictions of N.Y. Ins. Law § 2505 does not apply—the owner or contractor may

require the subcontractor to share the costs of insurance.33

Type of Construction Project Wrap-Up Insurance Permitted Cost Sharing Permitted

Private Construction Project Yes No

Public Construction Project covered by § 2404 No N/A

Public Construction Project exempted by § 2404 Yes Yes

31 N.Y. Ins. Law § 2504. There are several exceptions to the ban on Wrap Up Insurance in the context of public

construction projects.

32 N.Y. Ins. Law § 2505.

33 Office of General Counsel Opinion, May 20, 1997, available at

http://www.dfs.ny.gov/insurance/ogco2005/rg051111.htm (last accessed January 30, 2014).

Primer | Constructive Perspectives: Are New York’s Construction Safety and Insurance Laws Serving the Public?

11 11

Provisions

Labor Law, Article 10. Building Construction, Demolition And Repair Work, § 240

§ 240. Scaffolding and other devices for use of employees

1. 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.

No liability pursuant to this subdivision for the failure to provide protection to a person so employed shall be

imposed on professional engineers as provided for in article one hundred forty-five of the education law, architects

as provided for in article one hundred forty-seven of such law or landscape architects as provided for in article one

hundred forty-eight of such law who do not direct or control the work for activities other than planning and design.

This exception shall not diminish or extinguish any liability of professional engineers or architects or landscape

architects arising under the common law or any other provision of law.

2. Scaffolding or staging more than twenty feet from the ground or floor, swung or suspended from an overhead

support or erected with stationary supports, except scaffolding wholly within the interior of a building and covering

the entire floor space of any room therein, shall have a safety rail of suitable material properly attached, bolted,

braced or otherwise secured, rising at least thirty-four inches above the floor or main portions of such scaffolding or

staging and extending along the entire length of the outside and the ends thereof, with only such openings as may be

necessary for the delivery of materials. Such scaffolding or staging shall be so fastened as to prevent it from swaying

from the building or structure.

3. All scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent

therefrom or placed thereon when in use.

Labor Law, Article 10. Building Construction, Demolition And Repair Work, § 241

§ 241. Construction, excavation and demolition work

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, when constructing or demolishing buildings or doing any excavating in connection

therewith, shall comply with the following requirements:

1. If the floors are to be arched between the beams thereof, or if the floors or filling in between the floors are of

fireproof material, the flooring or filling in shall be completed as the building progresses.

2. If the floors are not to be filled in between the beams with brick or other fireproof material, the underflooring

shall be laid on each story as the building progresses.

3. If double floors are not to be used, the floor two stories immediately below the story where the work is being

performed shall be kept planked over.

4. If the floor beams are of iron or steel, the entire tier of iron or steel beams on which the structural iron or steel

work is being erected shall be thoroughly planked over, except spaces reasonably required for proper construction of

Primer | Constructive Perspectives: Are New York’s Construction Safety and Insurance Laws Serving the Public?

12 12

the iron or steel work, for raising or lowering of materials or for stairways and elevator shafts designated by the

plans and specifications.

5. If elevators, elevating machines or hod-hoisting apparatus are used in the course of construction, for the

purpose of lifting materials, the shafts or openings in each floor and at each landing level shall be inclosed or fenced

in on all sides by a barrier of suitable height, except on two sides which may be used for taking off and putting on

materials, and those sides shall be guarded by an adjustable barrier not less than three nor more than four feet from

the floor and not less than two feet from the edges of such shafts or openings.

6. All areas in which construction, excavation or demolition work is being performed shall be so constructed,

shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and

safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to

carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work,

except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply

therewith.

7. The commissioner may make rules to provide for the protection of workers in connection with the excavation

work for the construction of buildings, the work of constructing or demolishing buildings and structures, and the

guarding of dangerous machinery used in connection therewith, and the owners and contractors and their agents for

such work, except owners of one and two-family dwellings who contract for but do not direct or control the work,

shall comply therewith.

8. The commissioner, as deemed necessary, shall promulgate rules designed for the purpose of providing for the

reasonable and adequate protection and safety of persons passing by all areas, buildings or structures in which

construction, excavation or demolition work is being performed, and the owners and contractors and their agents for

such work, except owners of one and two-family dwellings who contract for but do not direct or control the work,

shall comply therewith. The provisions of this subdivision shall not apply to cities having a population of one

million or more.

9. No liability for the non-compliance with any of the provisions of this section shall be imposed on

professional engineers as provided for in article one hundred forty-five of the education law, architects as provided

for in article one hundred forty-seven of such law or landscape architects as provided for in article one hundred

forty-eight of such law who do not direct or control the work for activities other than planning and design. This

exception shall not diminish or extinguish any liability of professional engineers, architects or landscape architects

arising under the common law or any other provision of law.

10. Prior to advertising for bids or contracting for or commencing work on any demolition work on buildings

covered under this section except agricultural buildings as defined in regulations promulgated by the commissioner

and except buildings the construction of which was begun on or after January first, nineteen hundred seventy-four,

all owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or

control the work, shall conduct or cause to be conducted a survey to determine whether or not the building to be

demolished contains asbestos or asbestos material as defined in section nine hundred one of this chapter. Such

surveys shall be conducted in conformance with rules and regulations promulgated by the commissioner.

Information derived from such survey shall be immediately transmitted to the commissioner and to the local

governmental entity charged with issuing a permit for such demolition under applicable state or local laws or, if no

such permit is required, to the town or city clerk. If such survey finds that a building to be demolished contains

asbestos or asbestos material as defined by section nine hundred one of the [this] [n1] [n1] chapter, no bids shall be

advertised nor contracts awarded nor demolition work commenced by any owner or agent prior to completion of an

asbestos remediation contract performed by a licensed asbestos contractor as defined by section nine hundred one of

this chapter.

Insurance Law, Article 25. Prohibitions Against Controlled Business, § 2504

§ 2504. Designation of particular insurer, agent or broker for insurance in certain public construction

contracts

(a) (1) No officer or employee of this state, or of any public corporation as defined in section sixty-six of the

Primer | Constructive Perspectives: Are New York’s Construction Safety and Insurance Laws Serving the Public?

13 13

general construction law, or of any public authority, and no person acting or purporting to act on behalf of such

officer, employee, public corporation or public authority, shall, with respect to any public building or construction

contract which is about to be, or which has been, competitively bid, require the bidder to make application to any

particular insurance company, agent or broker for or to obtain or procure therefrom, any surety bond or contract of

insurance specified in connection with such contract, or specified by any law, general, special or local.

(2) In paragraph one hereof, "public corporation" and "public authority" shall not include:

(A) a public corporation or public authority created pursuant to agreement or compact with another state, or

(B) the city of New York, a public corporation or public authority, in connection with the construction of

electrical generating and transmission facilities or construction, extensions and additions of light rail or heavy rail

rapid transit and commuter railroads.

(b) No such officer or employee, and no person, firm or corporation acting or purporting to act on behalf of such

officer or employee, shall negotiate, make application for, obtain or procure any of such surety bonds or contracts of

insurance (except contracts of insurance for builders risk or owners protective liability) which can be obtained or

procured by the bidder, contractor or subcontractor.

(c) This section shall not, however, prevent the exercise by such officer or employee on behalf of the state or such

public corporation or public authority of its right to approve the form, sufficiency, or manner of execution, of surety

bonds or contracts of insurance furnished by the insurance company selected by the bidder to underwrite such bonds

or contracts. Any provisions in any invitation for bids, or in any of the contract documents, in conflict herewith are

contrary to the public policy of this state.

Insurance Law, Article 25. Prohibitions Against Controlled Business, § 2505

§ 2505. Designation of particular insurer, agent or broker for construction contracts generally

(a) In any building or construction contract bid, negotiated or executed except as described in section two thousand

five hundred four of this article, no contractor or subcontractor shall be required to pay premiums or related charges

for policies of insurance or surety bonds specified in connection with such contract on policies or surety bonds

acquired by an owner or other contractor. No contractor or subcontractor shall be required to make application to

any particular insurance company, agent or broker for, or to obtain or procure there from, any policy of insurance or

surety bond specified in connection with such contract, or specified by any law, general, special or local.

(b) This section shall not, however, prevent an owner or other contractor from providing all insurance policies or

surety bonds required by such contract without reimbursement from the contractor or subcontractor. Nor shall it

preclude such owner or contractor from requiring that the contractor or subcontractor provide a credit in his bid

which reflects the amount the bidding contractor or subcontractor would otherwise add if he provided his own

insurance as required in the bid specifications. This section shall not deny an owner or contractor the right to

approve the form, sufficiency, or manner of execution, of any insurance policies or surety bonds furnished by the

insurance company selected by the bidder.

BILL TEXT:

STATE OF NEW YORK

________________________________________________________________________

111

2013-2014 Regular Sessions

IN SENATE

(Prefiled)

January 9, 2013

___________

Introduced by Sen. GALLIVAN -- read twice and ordered printed, and

when

printed to be committed to the Committee on Judiciary

AN ACT to amend the civil practice law and rules, in relation to

the

applicability of certain provisions with respect to persons injured

in

the use of scaffolding and other devices for use by employees

The People of the State of New York, represented in Senate and

Assem-

bly, do enact as follows:

1 Section 1. The civil practice law and rules is amended by adding a

new

2 section 1414 to read as follows:

3 § 1414. Applicability to certain actions. 1. In any action

or

4 proceeding to recover damages for personal injury, injury to

property,

5 or wrongful death pursuant to section two hundred forty,

subdivisions

6 one through five of section two hundred forty-one, or section

two

7 hundred forty-one-a of the labor law, where safety equipment or

devices

8 have been made available, and a person employed or otherwise entitled

to

9 the protection of the provisions of such section has failed to

follow

10 safety instruction or safe work practices in accordance with

training

11 provided, or failed to utilize provided safety equipment or devices,

or

12 engaged in a criminal act or was impaired by the use of drugs or

alco-

13 hol, and such failure, act or impairment is a proximate cause of

an

14 injury to such person, the conduct attributable to such person shall

not

15 bar recovery, but the amount of damages otherwise recoverable shall

be

16 determined in accordance with section fourteen hundred eleven of

this

17 article to the extent that such conduct relates to the commission of

a

18 criminal act, impairment caused by the use of drugs or alcohol,

the

19 failure to use safety equipment or devices, the failure to comply

with

20 instructions or training regarding the use of safety equipment

or

21 devices or the failure to otherwise comply with safe work practices

in

22 accordance with safety training programs provided to such person.

Such

23 training programs shall include, but shall not be limited to, courses

in

EXPLANATION--Matter in italics (underscored) is new; matter in

brackets

[ ] is old law to be omitted.

LBD01953-

01-3

S. 111 2

1 construction safety and health certified by the United States

Occupa-

2 tional Safety and Health Administration or the department of labor.

3 2. Nothing contained in this section shall be deemed to impose

or

4 create liability under such sections of the labor law referred to

in

5 subdivision one of this section, where a person employed or

otherwise

6 entitled to the protection of the provisions of such sections has

failed

7 to follow safety instructions or safe work practices in accordance

with

8 training provided, or failed to utilize provided safety equipment

or

9 devices, or engaged in a criminal act or was impaired by the use

of

10 drugs or alcohol, and such failure, act or impairment is the sole

proxi-

11 mate cause of an injury to such person.

12 § 2. This act shall take effect immediately and shall apply to

all

13 causes of actions accruing on or after such date.

SPONSORS MEMO:

NEW YORK STATE SENATE

INTRODUCER'S MEMORANDUM IN SUPPORT

submitted in accordance with Senate Rule VI. Sec 1

BILL NUMBER: S111

SPONSOR: GALLIVAN

TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to the

applicability of certain provisions with respect to persons injured in

the use of scaffolding and other devices for use by employees

PURPOSE:

To establish a comparative negligence standard for claims under Labor

Law sections 240 and 241 with respect to a recalcitrant worker.

SUMMARY OF PROVISIONS:

Amends the Civil Practice Law and Rules to add a new Section 1414. This

section applies a comparative negligence standard as provided for in

CPLR 1411 with respect to actions for personal injury, property damage

or wrongful death arising under Labor Law Sections 240 and 241 to the

extent the conduct relates to the following: a criminal act, use of

drugs or alcohol, failure of the employee to use safety devices

furnished at the job site, failure to comply with employer instructions

regarding the use of safety devices at the job site, or failure of the

employee to comply with safe work practices in accord with safety train-

ing programs provided by the employer.

JUSTIFICATION:

The construction industry is currently facing a liability insurance

crisis. Contractors are receiving insurance cancellation notices and

being forced to seek coverage from non-admitted carriers with exclusions

from coverages at exorbitant rate increases. Many contractors are

concerned that existing coverage no matter how limited will also evapo-

rate from the market. This insurance coverage crisis is especially

difficult for smaller contractors Many insurance carriers who have with-

drawn from the market are citing the costs associated with absolute

liability pursuant to the so called safe place to work law provided for

in Labor Law Sections 240 and 241.

This legislation attempts to take a limited approach to this problem by

applying comparative negligence standards to a recalcitrant worker. This

approach falls significantly short of repeal but attempts to contain the

costs of absolute liability in a fair manner by making an employee who

directly contributes to his injury liable for the portion of fault

assessed by a jury for his own conduct. This comparative negligence

standard is only applied in limited circumstances such as commission of

a criminal act, use of drugs or alcohol, failure to use safety devices

at the job site, failure to comply with employer instructions regarding

the use of safety devices at the job site or failure of the employee to

comply with safe work practices in accord with a safety program provided

by the employer. The latter provision encourages employers to afford

training certified by OSHA or the State Labor Department to its employ-

ees.

This bill does not take away the right of any injured worker to sue.

Rather it makes a recalcitrant worker responsible for his own conduct

This approach encourages workplace safety by encouraging workers to take

responsibility for their own safety., There are conflicting court cases

that apply the doctrine of recalcitrant worker and this bill would clar-

ify worker responsibility. This bill would establish a uniform standard

for the application of the recalcitrant worker doctrine. It also is a

modest change in the absolute liability of the safe place to work stat-

ute that remains the only such statute in place among the other 49

states.

LEGISLATIVE HISTORY:

2011-12: S.6816/A.2835 Referred to Judiciary

2009-10: S.4037/A.1895 Referred to Judiciary

2007-08: S.4317/A.2528 Held for consideration in Labor

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect immediately.

A8745 Moya (MS) No Same as

Insurance Law

TITLE....Enacts the "construction insurance transparency act of 2013" to require insurers

providing coverage for liability under the scaffold law to report to the superintendent of financial

services

02/11/14 referred to insurance

STATE OF NEW YORK

________________________________________________________________________

8745

IN ASSEMBLY

February 11, 2014

___________

Introduced by M. of A. MOYA, CAMARA, TITONE, CRESPO, RODRIGUEZ,

BRAUN-

STEIN, KIM -- read once and referred to the Committee on Insurance

AN ACT to amend the insurance law, in relation to enacting

the

"construction insurance transparency act of 2014" requiring all

insur-

ers which issue policies of liability insurance insuring

against

claims made in reliance upon the duty imposed by the "scaffold law"

to

file annual financial statements and detailed claim data with

the

superintendent of financial services

The People of the State of New York, represented in Senate and

Assem-

bly, do enact as follows:

1 Section 1. This act shall be known and may be cited as

the

2 "construction insurance transparency act of 2014".

3 § 2. Declarations of legislative findings. The legislature

hereby

4 finds and declares that persons, corporations, associations or

other

5 business entities which issue policies of liability insurance

insuring

6 an owner of real property or a contractor who is performing work

and

7 services on real property against claims made in reliance upon

the

8 duties imposed upon such parties by section 240 of the labor

law,

9 commonly referred to as the "scaffold law", owe an obligation to

the

10 public, to those they insure and to those who may in the future

be

11 insured by them, to fully disclose in a public and transparent

manner

12 all elements relating to the premiums paid for such insurance, the

meth-

13 od and manner in which such premiums are determined and imposed

upon

14 insureds, and claims made by injured persons who rely on owners

and

15 contractors to provide a safe and secure worksite as required in

such

16 section of such law. It is essential that the public be made aware

of

17 such an insurer's responsibility to inform them of their

financial

18 condition and solvency, and the details and specifics of the factors

and

19 circumstances behind its financial solvency as well as the basis for

the

20 rates they charge to owners and contractors to obtain such coverage.

The

21 determination of premiums for such liability insurance policy in

this

22 state has, unfortunately, gone on too long in obscurity, with even

those

23 who bear the cost of premiums unable to learn why prices are set as

they

24 are. As a matter of public trust, liability insurers should be

required

EXPLANATION--Matter in italics (underscored) is new; matter in

brackets

[ ] is old law to be omitted.

LBD11972-

02-4

A. 8745 2

1 to make the public aware of the pertinent facts related to their

premium

2 determinations and financial solvency by disclosing all the

pertinent

3 facts as provided for in this section. It is the further sense of

the

4 legislature that this data should be disclosed in an open and

public

5 manner, and should be made available without undue cost and delay.

6 § 3. The insurance law is amended by adding a new section 342 to

read

7 as follows:

8 § 342. Financial statement and detailed claim data to be filed

with

9 the superintendent. (a) For purposes of this section, the term

"insurer"

10 shall mean any person, corporation, association or other business

entity

11 which issues a policy of liability insurance insuring a contractor

or

12 owner of real property located in this state against claims made by

an

13 injured worker, the claim for which is made in reliance upon the

duty

14 owed to such worker pursuant to the provisions of section two

hundred

15 forty of the labor law.

16 (b) On or before April first of each year, every insurer shall for

the

17 prior calendar year provide the superintendent and the public with

a

18 detailed financial statement to supplement and expand upon any

other

19 information otherwise provided to the department as it relates an

insur-

20 er's provision of liability insurance coverage to owners of real

proper-

21 ty or contractors performing services to owners of real property

for

22 claims made by an injured person in reliance upon the duty owed

by

23 section two hundred forty of the labor law; provided, however, that

the

24 initial financial statement so filed by an insurer after the

effective

25 date of this section shall include the information required in

this

26 subdivision not only for such prior calendar year but also for

the

27 previous nine calendar years prior to such report. The financial

state-

28 ment shall, in depth, separate the cost of providing section two

hundred

29 forty of the labor law based coverage from the cost of providing

general

30 liability insurance insuring the same owner or contractor with

respect

31 to the same property and shall contain at least the following

informa-

32 tion relating to coverage pursuant to such section: (1) that portion

of

33 premiums assessed and attributable to providing such coverage; (2)

paid

34 judgments, settlements or losses resulting from such coverage; (3)

case

35 reserves for losses which may be attributable to coverage; (4)

incurred

36 but not reported loss estimates which may be attributable to

coverage;

37 (5) paid defense and cost containment expenses attributable to

any

38 claims made based upon such coverage; (6) case reserves for defense

and

39 cost containment experience attributable to any claims made based

upon

40 such coverage; (7) incurred but not reported defense and cost

contain-

41 ment estimates based upon such coverage; (8) premium and loss

experience

42 identified by policy limits and deductibles; (9) number of claims

initi-

43 ated and closed; (10) number of claims closed with loss payments;

(11)

44 number of open claims at the time such statement is prepared; (12)

other

45 expenses by category as determined by the superintendent to reflect

the

46 cost to the insurer to provide such coverage as part of a

liability

47 insurance policy; (13) investment income realized from that portion

of

48 the premium paid for a policy providing such coverage; (14) the

amount

49 of exposure to the insurer resulting from the provision of such

coverage

50 and whether the insurer has limited the amount of coverage

provided

51 together with an estimate of the amount which might be required of

the

52 insured to purchase further coverage from an out of state excess

lines

53 provider, based upon current data available to such in-state

provider,

54 especially where such in-state provider operates as an excess

line

55 insurer for risks in another state; (15) amounts spent by insurer

for

56 risk management programs, or required to be spent by insureds at

the

A. 8745 3

1 behest of the insurer, which programs are designed and intended

to

2 promote worksite safety, more particularly as it relates to

height

3 related accidents covered by section two hundred forty of the labor

law;

4 and (16) the aforegoing experience and information further subdivided

by

5 quality of risk as measured by prior loss experience, contractor

payroll

6 ranges, contractor number of employee ranges, risk management

partic-

7 ipation, and other relevant identifiable differences in exposure

to

8 insurance loss. The data provided by insurers shall be separated out

so

9 that a determination can be made that a claim made or paid is

based

10 partially or totally upon section two hundred forty of the labor

law;

11 coverage, and not any other provision of statutory or common law

impos-

12 ing another or different or separate standard of care or duty to

an

13 injured party. Such financial statement shall include the entirety

of

14 such insurer's business activities insuring against risks occurring

in

15 this state and shall be in a form determined by the superintendent.

The

16 form shall be sufficiently itemized in a manner that allows for an

actu-

17 arially sound analysis of the income realized by the insurer from

all

18 sources during such year, including but not limited to premiums,

invest-

19 ment income, and any other category or categories of income as

deter-

20 mined by the superintendent to reflect the full disclosure

requirements

21 of this section and that portion which may be specifically related

to

22 such coverage. At a minimum, such information shall consist of the

items

23 set forth in the statement of income, excluding the capital and

surplus

24 account section of the property/casualty statutory annual statement,

as

25 applicable to the insurer's New York state business, as well as

the

26 other information delineated in this subsection. Such financial

state-

27 ment shall also contain a comprehensive and detailed disclosure of

the

28 insurer's expenses actually incurred and paid during such calendar

year,

29 to include normal business expenses, salaries, commissions,

consulting

30 fees, legal expenses, advertising costs and any other category

deemed

31 pertinent to the intent of this section. At a minimum, the

expense

32 information required shall consist of the items set forth in the

under-

33 writing and investment exhibit - part 3 - expenses of

the

34 property/casualty statutory annual statement, as applicable to

the

35 insurer's New York state business. With respect to salaries

(including

36 all other forms of compensation), each insurer shall itemize the

salary

37 of the twenty most highly compensated employees of such insurer

during

38 such year, provided that the names of such employees need not

be

39 disclosed. Such financial statement shall also provide the public

with

40 a synopsis of claims or settlements paid for section two hundred

forty

41 of the labor law coverage pursuant to such policies or contracts,

list-

42 ing the total of such claims and settlements attributable to such

cover-

43 age. At a minimum, the claim information required shall consist of

the

44 items set forth in the exhibit of premiums and losses of

the

45 property/casualty statutory annual statement, as applicable to

the

46 insurer's New York state business and identified and categorized

sepa-

47 rately for each zip code in this state. Such financial statement

shall

48 be signed and attested as full, complete and accurate by the chief

exec-

49 utive officer of the insurer, and he or she shall be held

personally

50 responsible with respect to the accuracy of the content of such

state-

51 ment. The superintendent shall provide insurers with a method to

submit

52 their financial statements electronically via the internet, which

method

53 shall include instructions relating to the use of an electronic

signa-

54 ture which shall be subject to, and submitted in accordance with

section

55 three hundred sixteen of this article; provided, however, that no

excep-

56 tion authorized in such section may be requested or granted.

A. 8745 4

1 (c) On or before April first of each year, every insurer shall

provide

2 the superintendent with detailed closed claim information for the

same

3 insurance coverage as provided for in subsection (b) of this section

for

4 the most recently concluded calendar year. Until the

superintendent

5 promulgates data collection forms and procedures for the

itemization

6 requirements, data shall be collected using, at a minimum, the

most

7 recent publicly available forms required by law, or commonly used in

the

8 insurance industry. The superintendent may require additional

informa-

9 tion beyond that which may otherwise be currently required if he or

she

10 deems it necessary and warranted without the need to formally

adopt a

11 rule or regulation provided such requirement is consistent with

the

12 intent of this section. Such detailed claim data shall be signed

and

13 attested as full, complete and accurate by the chief executive

officer

14 of the insurer, and he or she shall be held personally responsible

with

15 respect to the accuracy of the data. The detailed claim data shall

be

16 submitted in the same manner as provided for in subsection (b) of

this

17 section.

18 (d) The superintendent shall, in both written form and as part of

the

19 department web site, make such financial statements and detailed

claim

20 information available to the public. The detailed claim

information

21 shall be provided in aggregate form for all insurers and separated

by

22 specific insurer, combined without any identification of a

specific

23 claim to a specific insurer. None of the publicly available

detailed

24 claim information shall identify the individual insurer, defendant

or

25 plaintiff, or representative of the same, associated with the

claim.

26 Such financial statements and detailed claim information shall be

deemed

27 a public document and no person shall be required to file a request

for

28 such financial statements pursuant to article six of the public

officers

29 law in order to receive a copy thereof, but upon request and payment

of

30 the fee for copying such document, it shall be provided forthwith.

With

31 respect to the electronic copy of such financial statements and

detailed

32 claim information, which shall be accessible on the department's

web

33 site, the department shall highlight the availability of such

informa-

34 tion to the public on such web site, and the link to each

insurer's

35 financial statement and the aggregated detailed claim information

shall

36 be accessible in a simple and easy manner. Both the financial

statement

37 and aggregated detailed claim information on the department's web

site

38 shall be available in spreadsheet format, in addition to any

other

39 format the superintendent determines is appropriate. Where summaries

are

40 included, they shall be written in plain and simple English so that

the

41 public at large can easily comprehend the data provided.

42 (e) On or before July first of each year, the superintendent

shall

43 issue reports summarizing and explaining the information collected

from

44 the financial statements and the detailed claim information and

summa-

45 rizing the cost and other essential elements relevant to

providing

46 section two hundred forty of the labor law coverage. Such report

shall

47 further contain such recommendations the superintendent deems

advisable

48 to encourage the utilization of risk management programs to be

regularly

49 conducted by contractors to reduce premiums and provide workers

with a

50 safer work environment, and any other steps contractors or real

property

51 owners should utilize in furtherance of the same. The superintendent

may

52 seek, and shall be entitled to receive, the aid and assistance of

the

53 commissioner of labor and any other state or local governmental

official

54 charged with responsibility for work site safety in preparing such

anal-

55 ysis and recommendations. Copies of such reports shall be forwarded

to

56 the temporary president of the senate, the speaker of the assembly

and

A. 8745 5

1 the chairs of the senate and assembly insurance committees. Such

reports

2 shall be public documents and shall be accessible both in paper copy

and

3 on the department's web site in a similar fashion as provided for

in

4 subdivision (d) of this section.

5 (f) Where an insurer fails or refuses to provide the

superintendent

6 with a full and complete disclosure as required by this section,

the

7 superintendent shall take such action he or she deems necessary to

bring

8 the insurer into full compliance. Such action may include imposition

of

9 a civil penalty of up to fifty thousand dollars assessed against

the

10 insurer for each violation, temporary suspension of any right to

issue

11 additional policies or contracts until the insurer brings itself

into

12 full compliance, an audit of the insurer's records by the department

or

13 its designated representative to obtain the information and which

audit

14 shall be paid for by the insurer, or any other civil remedy the

super-

15 intendent deems warranted or necessary until such insurer

fully

16 complies. In addition the officer whose signature is affixed to

such

17 statement may be personally penalized to the same extent.

18 (g) The superintendent may promulgate such rules and regulations he

or

19 she deems necessary for the proper administration of the provisions

of

20 this section, and such rules and regulations may be promulgated on

an

21 emergency basis if the superintendent warrants such action to be

neces-

22 sary.

23 § 4. Severability. If any item, clause, sentence, subparagraph,

subdi-

24 vision or other part of this act, or the application thereof to

any

25 person or circumstances shall be held to be invalid, such holding

shall

26 not affect, impair or invalidate the remainder of this act but it

shall

27 be confined in its operation to the item, clause, sentence,

subpara-

28 graph, subdivision or other part of this act directly involved in

such

29 holding, or to the person and circumstances therein involved.

30 § 5. This act shall take effect on the first of January next

succeed-

31 ing the date upon which it shall have become a law.

NEW YORK STATE ASSEMBLY

MEMORANDUM IN SUPPORT OF LEGISLATION

submitted in accordance with Assembly Rule III, Sec 1(f)

BILL NUMBER: A8745

SPONSOR: Moya¦(MS)

TITLE OF BILL: An act to amend the insurance law, in relation to

enacting the "construction insurance transparency act of 2014" requiring

all insurers which issue policies of liability insurance insuring

against claims made in reliance upon the duty imposed by the "scaffold

law" to file annual financial statements and detailed claim data with

the superintendent of financial services

PURPOSE OR GENERAL IDEA OF BILL:

The bill expands upon current insurance reporting laws by providing for

more detailed reporting requirements of liability insurers' "financial

statements" and "closed claims" data, where those insurers provide

coverage against claims made under Labor Law 240. This data collection

will provide lawmakers with a source of reliable and accessible data

that will better enable them to evaluate liability insurance in this

area and assist in providing an optimal product to New York citizens.

SUMMARY OF SPECIFIC PROVISIONS:

The proposed language provides for a publicly accessible and neutral

method for the systematic collection of financial and closed claims data

for liability insurance covering claims made under Labor Law 240.

The supplemental financial disclosure requirements stipulate that insur-

ers must provide detailed information concerning all sources of "income

including; but not limited to, data on premiums attributable to coverage

for labor law 240 claims and investment income.

Detailed information regarding expenses must also be provided, includ-

ing, expenses actually incurred and paid, normal business expenses,

salaries, commissions, consulting fees, legal expenses, risk management

program expenses and advertising costs. A synopsis of the total claims

or settlements paid in each financial statement and specific data on

claims that have been settled with or without a payment (closed claims)

must also be provided.

Additionally, all submitted data must be signed by the insurer's chief

executive officer, attesting its' accuracy. Civil penalties will be

assessed against companies that fail to comply with any of the

provisions of the bill.

Finally, the Department of Financial Services must make all information

publicly available on the department's web site.

JUSTIFICATION:

For participants in the construction industry liability insurance plays

a vital role providing financial security for all parties in the event

of an accident. Liability insurance is often required for contractors or

property owners to obtain necessary permits or to take on many projects;

without liability insurance, participation in this sector of the economy

can be impeded. Given the critical role of the construction industry in.

the State economy, the State has a vested interest in ensuring transpar-

ency to ensure that the premiums paid for liability insurance are fairly

established. Given perennial calls for reform that would weaken Labor

Law 240 -a long-standing and successful worker safety law - based on

that laws alleged impact on insurance costs, it is particularly impor-

tant that insurance covering Labor Law 240 claims is given particular

scrutiny.

The determination of premiums for such liability-insurance policies in

New York has, gone on too long in obscurity. No independent and neutral

mechanism exists to determine why premium rates are set where they are.

And, because insurers routinely refuse requests to produce more detailed

data, lawmakers, workers and the public have to rely on the industry's

reports to make policy decisions.

As a matter of public trust, liability insurers should be required to

make policyholders and the public aware of the facts related to premium

determinations and financial solvency in this area. Furthermore, inde-

pendent, objective and accurate data is needed so lawmakers and the

public can conduct sound analyses in reaching public policy decisions

that impact(s) tens of thousands of New Yorkers working in the

construction industry. More detailed claim data would help in evaluating

the insurance industry claims that worker safety laws are responsible

for driving up insurance premiums paid by property owners and contrac-

tors, In the absence of this basic data, it is.impossible for lawmakers

and consumers to engage in rational decision-making about insurance

industry proposals that would severely limit workers' rights.

PRIOR LEGISLATIVE HISTORY:

None

FISCAL IMPLICATIONS:

None

EFFECTIVE DATE:

The first day of January next succeeding the date upon which the bill

becomes law.

1

Primer on Public Policy Analysis

Terri Matthews

Chair, Construction Law Committee1

New York City Bar Association

Introduction. Consistent with political realities in a democracy, it is not often that policy

analysis can “acquire significant independent influence in the shaping of public policy,”1 Under

certain circumstances, however, it is possible for policy analysis to “alter the beliefs of policy

makers” and “to limit the potential for unbridled distortion of the expression of values and

beliefs on the part of any particular analyst."2 Since a core of construction and related built

environment issues have significant physical aspects, reducible to and largely explainable by

quantitative data, it would seem that policy decisions on built environment issues would be

more susceptible to the influence of policy analysis due to the likelihood that analysts “share

common bases to assess analytical claims.”3 But, as noted above, the experience of the

Construction Law Committee with public construction procurement has yet to bear that

assumption out. The political environment within which this educational event is taking place4

further suggests an inability of policy analysis to change policy makers’ positions—to move the

conversation from the purely political to a space where policy analysts can:

use a range of analytical techniques and multiple fields of knowledge to engage

in a number of distinct procedures or steps, including: (1) identifying the

"problem" to be resolved, (2) specifying the goal(s) to be sought through public

policy, (3) identifying or inventing the available policy alternatives, (4) estimating

the effects of each of the alternatives, both favorable and unfavorable, (5)

imputing values in a single, commensurable metric to those effects, and (6)

choosing the "best" policy alternative according to an explicit decision rule.5

Once cause for this inability may be the fragmented nature of the construction industry,6 which

fragmentation is mirrored among the built environment academic disciplines.7 Other reasons

for this inability stem from a combination of three conditions within the surrounding

environment. First, when there is a high level of conflict, “[c]oalitions are very willing to

commit analytical resources but are unlikely to alter beliefs on the basis of analytical results,

[and a]nalysis serves primarily as analytical ammunition in policy debates.”8 Second, in an open

analytical forum, such as a legislative session, “[a]ll active subsystem participants [are] admitted

to the debate; result[ing] in a wide range of professional backgrounds and a lack of common

bases for assessment of analytical claims.”9 And last, when there is low analytical tractability or

1 This paper is not a document of the Construction Law Committee and only reflects the personal opinion of the author.

2

“[l]ittle agreement on theory or data, leading to a broad range of plausible positions, [a]nalysis

can be mobilized to support a wide array of policy positions with relative impunity.”10

In order to help increase analytical tractability as a first step to reducing the level of analytical

conflict and creating an analytical space where “[p]articipants [are] admitted on [the] basis of

professional/technical competence . . . [thus enhancing the] role of analysis in constraining the

scope of plausible claims made in policy debate,”11 this primer will sketch out issues with data

and theory that emerged during the planning sessions for this educational event.

Where is Construction Safety Data? Since construction project safety data seems to follow the

mixed federal and state statutory framework, this sketch of data sources will follow the various

laws. The most comprehensive workplace safety laws are those of the Occupational Safety and

Health Administration (OSHA), established, in 1971, as a special agency within the federal

Department of Labor, to administer the Occupational Safety and Health Act of 1970 (the Act).

The Act “established for the first time a nationwide, federal program to protect almost the

entire work force from job-related death, injury and illness.”12 Shortly after its creation, OSHA

promulgated its first set of rules, effective as of August 1971.13 As a national regulator, the data

that OSHA collects facilitates comparisons of industry-wide safety performance across states,

although the existence of state occupational and health safety plans, which are permitted

under the Act so long as they are at least consistent with the minimum OSHA regulations, do

require taking care in making certain comparisons.14 Of the 27 states with “state” plans, New

York State is one of five states15 with a “state plan” that covers the working conditions of public

employees only. Thus, in New York, federal OSHA regulations cover private sector construction

employees regardless of whether the project is publicly or privately funded, but the State’s

OSHA-like regulations cover state and local government employees who may be working on

those same projects. For examples of OSHA safety data and how it can be used, please see

Exhibit 1.

Before OSHA was created, New York State had its own Industrial Code that developed in

tandem with the Labor Law.16 The Labor Law imposes a general obligation of all employers,

whose places of work are covered to “provide reasonable and adequate protection to the lives,

health, and safety of all persons employed therein or lawfully frequenting such places.”17 All

building construction, demolition and repair work and public works are subject to this statutory

obligation, as well as to more detailed regulations covering construction, demolition and

excavation operations within the State’s Industrial Code.18 In order to remain consistent with

OSHA’s regulations, these Industrial Code regulations were amended, effective as of June 1,

1972, to eliminate all provisions deemed pre-empted by OSHA’s regulations. Almost without

exception, the remaining regulations applicable to construction have not been amended

3

since.19 Since 1972, construction techniques have evolved to meet the demands of increasingly

complex buildings and infrastructure and materials, yet the State's Industrial Code regulations

protecting construction workers remain virtually unchanged from then. A review of the State’s

Department of Labor’s website,20 however, does not evidence any Industrial Code violation

data. This is consistent with anecdotal evidence that the State no longer funds the

enforcement of these regulations, the current purpose of which appears to serve as the basis of

actions under Labor Law, Section 241(6), which rely on violations of these circa 1972

regulations.21

The State has a significant role in the Workers Compensation insurance scheme. After the last

half of the 19th century, when more than a quarter of states had statutes permitting injured

employees to sue their employees for negligence, a trend began for states—and the federal

government—to adopt worker's compensation legislation instead.22 In 1914, New York voters

approved the Workers' Compensation Act by referendum, in response to “the 1909 Wainwright

Commission that reported on the woeful labor conditions and treatment of injured workers,

and the Triangle Shirtwaist factory fire of 1911, among the most deadly in New York City

history.”23 “Workers' compensation is a form of insurance providing wage replacement and

medical benefits to employees injured in the course of employment in exchange for mandatory

relinquishment of the employee's right to sue his or her employer for the tort of negligence.”24

The New York State Insurance Fund (NYSIF), “created as part of the law to guarantee the

availability at all times of workers' compensation protection at the lowest possible cost to any

employer seeking coverage,” holds the State’s “Workers' Compensation Fund, also created in

1914, insuring employers against occupational injury and disease suffered by their

employees.”25 While not the only carrier in the State for workers’ compensation benefits,

NYSIF, a self-supporting carrier directly connected with the State, is mandated to provide

coverage at costs “fixed at the lowest possible rates consistent with the maintenance of a

solvent fund and of reasonable reserves and surplus."26 A review of the NYSIF website reveals

no workers compensation claims data, but another State-connected entity, the New York

Compensation Insurance Rating Board (NYCIRB), uses the Workers’ Compensation claims data

to administer the State’s experience rating plan:

Experience Rating is a mandatory program for workers compensation applied

only to employers that are statistically large enough for the individual employer’s

own past experience to be an indicator of how the loss costs for this employer

will differ from the average in the future. The Plan, in effect, recognizes

differences between individual employers by comparing the experience of each

employer to the average experience for all employers in the same classification.

Differences are reflected by an experience rating modification which may

4

increase or decrease the premium that an employer has to pay. Experience

ratings are generally determined on an annual basis and are usually effective for

a period of twelve months. The Rating Board automatically computes and

promulgates experience ratings for eligible New York employers and provides

this information to the employer’s carrier for calculation of the policy

premium.27

NYCIB, “a non-profit, unincorporated association of insurance carriers, including the State

Insurance Fund,” has been designated and licensed pursuant to the Worker’s Compensation

and Insurance Laws as the official rate service organization for the purpose of ““collect[ing] the

loss, premium and payroll data from each carrier, summarize[ing] this information and

develop[ing] an adequate rate structure.”28 In view of the relation between insurance claims

data and job safety, the NYCIB also “[a]dministers the New York Workplace Safety and Loss

Consultation Program whereby insured's with payrolls and experience modifications exceeding

certain mandated levels are instructed to undergo safety consultations and remediation where

necessary.”29 A review of the NYCIB reveals neither workers compensation claims data nor

workplace safety and loss consultation program data. The close connection of both NYSIF and

NYCIB to the State, via Workers' Compensation Act, would, however, suggest that the data

should be publicly obtainable and obtainable for research purposes.

Yet, the state of the data is like the adage that for someone with only a hammer, everything is a

nail. The data is either worker-based or derived from worker-based data, which results from

the assumption of worker centered cause and effect that underlies the current regulatory

scheme. The effects of this assumption in the context of what occurs on the construction site

are discussed next.

What is Construction and How Does that Relate to Safety? While federal and state laws and

regulations govern all types of work sites and processes, from mercantile to industrial

production to construction, construction is unique for its processes and related dangers. The

“construction industry stands out among all other industries with disproportionate numbers of

severe and fatal accidents,”30 in part because construction is less like factory production and

more like product development conducted at a specific site requiring on site assembly against a

dynamic and complex “parade of trades” tableau. In the “parade of trades” tableau, the

project is an assembled object, fixed-in-place31 where “the stations—or work crews—move

through the emerging whole [building in the process of becoming]”.32 This “parade of trades”

process also “involves a large number of specialty trades that generally work in a continuing

and repeating sequence as they move from one floor to another, from the structural parade,

the overhead work parade, the perimeter work parade, the enclosure work parade to the

5

interior finishes work parade, which can impact access and create congestion.”33 The

concentration of work at the site will vary by trade and “the different parades [will] move

through a building in different directions.”34 In this setting, “[e]very project is somebody else’s

subproject” in an atmosphere of “fast completion in a dynamic setting where frequent changes

are not the exception but the rule.”35 Finally, to make matters worse, the construction process

is an “undocumented process that takes place as an interplay between a complex and dynamic

customer, and a complex and dynamic productions system at a temporary production

facility.”36

Reported safety data is the by-product of regulations based on the “human factors” theory of

accidents, which “holds that human error is the main cause of accidents but the design of the

workplace and tasks that do not consider human limitation also contribute.”37 Current best

safety program practices “rest on an implicit worker centered causal theory . . . [and w]orker

training and motivation is assumed to be the key to preventing accidents.”38 The “worker

centered cause and effect model coupled with the violation of procedures” methodology do

not adequately “[explain] how incidents occur or [provide] the leverage required for further

improvement.”39 “Rules cannot be structured for all contingencies. Further, the very real

pressures of work should not be ignored.”40 Moreover, “even strong efforts in the form of

regulations, control, education and information campaigns, [all elements of worker centered

causal theory], have had minor effect only.”41

An approach more likely of success in producing safer projects is “to change the system’s

behavior into being safer.”42 By viewing “construction [as] essentially a design process”, more

like product development and less like factory production, at a specific site that requires on site

assembly,43 it becomes possible to identify and manage “previous work, space, crew,

equipment, information, materials and external conditions such as the weather” as “flows

toward . . . execution of a work package.”44 The techniques of managing the “turbulence” in

space, crew, equipment, information, materials and external conditions and using buffers to

“facilitate reliable workflow by ensuring that there is always work packages ready” 45 can shed

light on the root causes of accidents and the potential for loss of control. Managing “the

handing over of space from one trade to another”46 and “flows of crew [shared with other

construction projects] and equipment in a highly dynamic system”47 requires “not keeping the

system under tight control” but accepting “a frequent number of small—but acceptable—

unforeseen or not wanted incidents [to take] the stress out of the system and thereby

[contribute] to avoid[ing] the large and fate accidents.”48 This requires both “managing

bottom up and not top down only . . . transferring responsibility for the operations to the

lowest level possible while focusing the middle management’s own resources on managing the

logistics . . . and establish the overall strategy . . .”. 49 Thus the management process, which

6

“take[s] place by a series of conversations” becomes a “learning process, where the crews and

the organization as a whole are learning . . . about the object, the process and the objectives

and also learning about each other.”50 Thus, it becomes possible, once the work crews are

directly involved in work planning, for a completed package to mean that “the location is clear

for the next team with all the safety measures in place” and for a “process where safety no

longer is just a matter of obeying rules but of taking charge of the health of . . . fellow

workers.”51

Finally, despite “frequent work team rotations, exposure to weather conditions, high

proportions of unskilled and temporary workers . . .” and “. . . changes in topography, topology

and work conditions . . . that make managing construction site-safety more difficult than

managing safety in manufacturing plants,” it is, however, possible to assess and model

conditions for construction job safety to predict and thus manage risks to life.52 Each trade

activity can be assessed in the context of when it is performed in order to separate “the

potential for loss-of-control53 from the potential for presence of victims”54 and consider

“location exposure to other teams, work method and personal factors to assess risk levels”

focusing, instead of on accidents, on “near misses” or “[t]he probability of a loss-of-control

event occurring, [t]he exposure of potential victims in time and in space, [and t]he likely

severity level of an accident (which is also dependent on the use of personal safety gear).”55

The use of personal safety gear, a function of provision and of actual use, is a key variable in

assessing risks to construction job site safety and in “controlling the risk by taking sufficient

measures to reduce or eliminate it.”56 So despite the reality that “the organizational pressure to

increase productivity and the worker’s natural drive to minimize effort pushes workers to work

near the edge of safe performance,”57 once project management calculates risk levels “for

various planning windows”, it can enhance project safety by using the estimates either “to pull

safety interventions [by current system needs rather than push them uniformly onto workers

and activities] or to change production plans.”58

7

Exhibit 1

Comparative chart for each measure for the last reported year (2011) for the following states: NY, NJ, CT, CA, MA, MD, IL, GA and TX

State Assaults, violent

acts

Transportation incidents

Fires, explosions

Falls, trips, slips

Exposure to harmful

substances or environments

Contact with objects and equipment

Total Occupational

Fatalities

MD 1 4 3 3 13

NY 4 14 8 30

CA 16 24 6 8 56

IL 3 10 4 3 21

CT 5 7

MA 2 11 16

TX 6 22 3 22 15 15 83

NJ 1 8 6 3 3 21

GA 11 4 5 24

Fatal accidents per worker rate in Construction – year 2011

State Total Occupational

Fatalities

Average annual employment in

construction

Fatal Accidents /

Worker

Fatal Accidents / 1,000 Workers

Fatal Accidents / 100,000 Workers

MD 13 145400 0.00008941 0.089409 8.941

NY 30 309600 0.00009690 0.096899 9.690

CA 56 557700 0.00010041 0.100412 10.041

IL 21 202200 0.00010386 0.103858 10.386

CT 7 51600 0.00013566 0.135659 13.566

MA 16 110300 0.00014506 0.145059 14.506

TX 83 556400 0.00014917 0.149173 14.917

NJ 21 131000 0.00016031 0.160305 16.031

GA 24 149700 0.00016032 0.160321 16.032

8

Fatal accident rates reported by the BLS website - last column

Year TX IL NY CA

2011 9.7 7.4 7.2 6.5

2010 10.7 9.9 7.5 5.2

2009 16.7 9.5 5.4 6.1

2008 13.1 8.8 8.3 5.4

0

2

4

6

8

10

12

14

16

18

2008 2009 2010 2011

Fata

l Acc

ide

nt

Rat

e

Year

Fatal Accident Rates in TX, IL, NY and CA (2008-2011)

Texas

Illinois

New York

California

9

Fatal occupational injuries in New York State (excluding New York City) – Construction

Year Assaults and violent

acts

Transportation incidents

Falls, trips, slips

Exposure to harmful

substances or environments

Contact with objects and equipment

Total

2011 4 6 3 14

2010 4 9 4 20

2009 5 3 6 16

2008 6 4 14

2007 17 3 4 27

0

5

10

15

20

25

30

2006 2007 2008 2009 2010 2011 2012

Fata

litie

s

Year

Fatal Occupational Injuries in NYS (excluding NYC)Total

10

Note: Data from U.S. Department of Labor Bureau of Labor Statistics

(http://www.bls.gov/iif/state_archive.htm#NY) and compiled by Stanislav Lasiychuk, NYU

Polytechnic School of Engineering, Class of 2104.

0

2

4

6

8

10

12

14

16

18

2006 2007 2008 2009 2010 2011 2012

Fata

litie

s

Year

Fatal Occupational Injuries in NYS (excluding NYC)Falls, Trips, Slips

0

1

2

3

4

5

6

7

2006 2007 2008 2009 2010 2011 2012

Fata

litie

s

Year

Fatal Occupational Injuries in NYS (excluding NYC)Contact With Objects and Equipment

11

Endnotes 1 Hank Jenkins-Smith, Democratic Politics and Policy Analysis (Pacific Grove: Brooks/Cole, 1990), p. 4. 2 Idem. 3 Ibid., p. 103. 4 See Kirk Semple, “Contractors and Workers at Odds Over Scaffold Law”, The New York Times, December 17, 2013, available at http://www.nytimes.com/2013/12/18/nyregion/campaign-underway-to-amend-scaffold-law-protecting-construction-workers.html?ref=todayspaper; see also Daniel Geiger, “Obscure Law Drives Up Building Costs, Crain’s New York Business, February 19. 2014, available at http://www.crainsnewyork.com/article/20140219/REAL_ESTATE/140219844/obscure-law-drives-up-building-costs. 5 Jenkins-Smith, op. cit., p. 11. 6 See New York City Bar Association, Construction Law Committee, 21st Century Construction, 20th Century Construction Law (2008 Report) (http://www.nycbar.org/pdf/report/ConstructionLaw.pdf), pp. 6 and 27, endnotes 28 and 29. 7 See Joel R. Oaña, Developing and Managing a Research Program: FEU-SURE and Urbanization Issues, Conference on Urbanization and the Educator's Response, November 19, 2004, Far Eastern University Conference Center, p. 1 , citing Linda N. Groat and David Wang, Architectural Research Methods (New York: John Wiley & Sons, 2002) (http://ched-zrc.dlsu.edu.ph/pdfs/joel_oana_paper.pdf). 8 Jenkins-Smith, op. cit., p. 103. 9 Idem 10 Idem 11 Idem 12 Judson MacLaury, The Occupational Safety and Health Administration: A History of its First Thirteen Years, 1971-1984 Introduction http://www.dol.gov/oasam/programs/history/mono-osha13introtoc.htm 13 MacLuury op. cit., “George Guenther Administration, 1971-1973: A Closely Watched Start Up” http://www.dol.gov/oasam/programs/history/osha13guenther.htm 14 See http://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Act. 15 Connecticut, Illinois, New Jersey, New York and Virgin Islands plans cover public sector employees only. See https://www.osha.gov/dcsp/osp/index.html. 16 See Labor Law, Articles 8 and 10, Sections 21, 27, 7-1, 200, 240, 241; General Business Law, Section 483. The part of the Industrial Code covering construction is called Industrial Code Rule No. 23. See Chapter 1, Part 23, Section 23-1.1. 17 Labor Law, Section 200. 18 See also Michael J. Hutter, Reforming Labor Law 240/241 Bringing New York State into the 21st Century, September 1998, Albany Law School Government Law Center Government Law Online http: www.governmentlaw.org, p. 5 19 As a point of reference, the twin towers at the World Trade Center, innovative structures at that time, were completed in 1973. Only two regulations, 23-1.3 and 23-1.33, were amended subsequent to 1972, both in 1975, the year the Vietnam War ended. 20 See http://www.labor.ny.gov/workerprotection/safetyhealth/DOSH_INDEX.shtm and http://www.labor.ny.gov/workerprotection/safetyhealth/DOSH_CODE_RULES.shtm; see also http://www.labor.ny.gov/stats/index.shtm. 21 Daniel Santola, Chapter 4 The Plaintiff’s Lawsuit: Causes of Action and Pleading Rules from Construction Site Personal Injury Litigation, New York Labor Law Sections 201, 240(1) and 241(a), Thomas Segalla and Peter Powers, Eds in Chief (NYSBA 2006), pp. 96-97. 22 See http://en.wikipedia.org/wiki/Workers%27_compensation. 23 See http://ww3.nysif.com/AboutNYSIF.aspx. 24 See http://en.wikipedia.org/wiki/Workers%27_compensation. 25 See http://en.wikipedia.org/wiki/Workers%27_compensation. 26 See http://en.wikipedia.org/wiki/Workers%27_compensation 27 See http://www.nycirb.org/

12

28 See http://www.nycirb.org/ 29 See http://www.nycirb.org/ 30 Ophir Rozenfeld, Rafael Sacks, Yeheil Rosenfeld and Hadassa Baum, Construction Job Safety Analysis, Safety Science, 48 (2010), p. 491, citing Ahmed, Findley et al. 31 Glenn Ballard and Greg Howell, "What Kind of Production Is Construction?", Proceedings IGLC '98 Guaruja, Brazil, pp. 2, 4, 6. 32 Ibid., pp. 2, 4.. 33 Iris Tommelein, David Riley, Greg Howell, Parade Game: Impact of Workforce Variability on Trade Performance, Journal of Construction Engineering and Management, Sept/Oct 1999, p. 304. 34 Ibid., p. 305. 35 Sven Bertelsen, “Lean Construction: Where Are We and How to Proceed?”, Lean Construction Journal, Vol. 1 October 2004, p. 56. 36 Bertelsen, op.cit., p. 52. 37 Gregory Howell, Glenn Ballard, Tariq Abdelhamid and Panagiotis Mitropoulos, Working Near the Edge:A New Approach to Construction Safety, from proceedings of 10th Annual Conference of the International Group for Lean Construction, p. 2. 38 Ibid., p. 4. 39 Ibid., p.6. 40 Ibid., p. 11. 41 Bertelsen, op. cit., p. 63. 42 Idem 43 Ballard and Howell, op. cit., p. 5. Building design can be functionally conceived as “a flow of information and materials (flow process) and as the generation of value for customers” in the context of “converting inputs to outputs (conversion process).” (Idem) “Value is generated through a process of negotiation between customer ends and means. The first role of the designer is to make explicit to customers the consequences of their desires, subsequent to which customers may choose to modify their ends." (Idem) The design-build paradigm, aided by BIM technology which can greatly facilitate the flow process, is the context within which designers, constructors and the owner-customer can operate in a “social unity” on the design and production of a built artifact. (Ballard and Howell, op. cit., p. 7.) 44 Bertelsen, op. cit., p. 58. 45 Idem 46 Bertelsen, op. cit., p. 59. 47 Bertelsen, op. cit., p. 60 48 Bertelsen, op. cit., p. 61. 49 Idem 50 Bertelsen, op. cit., pp. 61, 63; see also Martin Marosszeky, Khalid Karim, Steven Davis, Nitin Naik, “Lessons Learnt in Developing Effective Performance Measures for Construction Safety Management,” from proceedings of 12th Annual Conference of the International Group for Lean Construction, 2004. 51 Bertelsen, op. cit., p. 63. 52 Rozenfeld et al., op. cit., p. 491. 53 As distinct from the probability of an accident since “[f]or every serious construction accident, there are multiple actual dangers events (near misses) that end with no injury [that] should be taken into account when assessing loss-of-control risk levels.” Rozenfeld p. 492 A trial implementation of a predictive risk assessment methodology revealed “activities with high levels of loss-of-control event occurrence are those performed outside and at height, whilst activities performed indoors have relatively low levels of occurrence,” and of four intensifying factors, the “most significant intensifying factor was found to be the first day on site.” Rozenfeld, op. cit., p. 497. 54 Rozenfeld, op. cit., p. 492 55 Idem 56 Idem 57 Rozenfeld, op. cit., p. 491, citing Mitropolous. 58 Rozenfeld, op. cit., p. 492