when more conservative-minded judges are appointed to the bench, as was the case during the Pataki years, it resulted in some decisions that weakened worker safety laws. Often these well-meaning judges who shape and make the law, make it harder for workers to prove their cases and get the justice we trial lawyers think they deserve.
New York, NY (PRWEB) December 26, 2008
Jaos Pires, a New York City construction site worker, suffered critical injuries in an accident last week and narrowly escaped death when a 100-year-old retaining wall underneath 11 Times Square collapsed and buried him to the waist in concrete, crushing his legs.
When asked what happened by a local newspaper reporter at the scene of the accident, one of Pires' fellow workers said, "It all happened so quickly, there was no time for him to get out of the excavation pit." The worker asked that his name not be used in the story. Another worker told the reporter, "It was like an avalanche. The wall just came crashing down on us." He spoke to the reporter on condition of anonymity. "There was really no time to react," said worker number three, who also insisted on remaining nameless.
"It's no wonder these three workers didn't want to go public with their comments," said David Perecman, a busy New York construction accident lawyer and a chair of the New York State Trial Lawyers Association Labor Law Committee.
"Can you imagine what might happen to these men if the boss found out they spoke to a reporter? First amendment rights, or no first amendment rights, in real life if a worker dares to say anything to the media that his or her employer doesn't like, it could be bye-bye job."
Pires' employer, Roadway Contracting, a Brooklyn-based company, was working for Plaza Construction, the general contractor for the project, when the construction site accident and injury occurred.
According to the Daily News, The New York City Buildings Department has issued 28 violations at the 11 Times Square site, most of them to Plaza Construction for such serious Class 1 infractions as "failure to safeguard all persons and property" and "failure to maintain all areas used by the public free from conditions of hazard."
Perecman charges that despite the laundry list of complaints against the contractor, and similar well-publicized problems with other contractors in New York, neo-conservative and anti-worker organizations and business groups, like Unshackle Upstate, continue to lobby Albany relentlessly in an effort to undermine laws that protect workers' health and safety in the workplace.
"When Governor Pataki was in office and ran the administration in the state," Perecman explained, "many conservative judges were appointed some of whose decisions tended to weaken New York State Labor Laws, the so-called, Safe Place to Work Laws."
"In my own experience as far as New York State goes," he added, "when more conservative-minded judges are appointed to the bench, as was the case during the Pataki years, it resulted in some decisions that weakened worker safety laws. Often these well-meaning judges who shape and make the law, make it harder for workers to prove their cases and get the justice we trial lawyers think they deserve."
Perecman said that some of the bills that have been introduced in Albany to amend Labor Law 240 would actually allow juries to shift some, if not all, of the burden of providing workplace health and safety from the contractor to the worker.
An earlier decision about New York state labor laws made by an appellate court in March 2007 went so far as to say that if an employee did not have access to safe equipment at the workplace, and went ahead and used what was provided by the owner, or the contractor, or by his employer, the worker bore the responsibility for his injury because he should have waited until the proper equipment was delivered from another location.
"Again, in situations like these," Perecman said, "if a worker says he wants to wait for proper equipment to arrive, it is certainly possible, if not likely, he would not gain favor in his employer's eyes, and may simply be asked not to return to work on that site the next day."
Some republican and pro-business opponents of sections 240 and 241 of The New York State Labor Law argue that these statutes establish an absolute liability standard on any contractor or property owner for a construction site accident or injury, regardless of fault, and that the law deprives owners and contractors of their right to defend themselves against such claims.
"This is an erroneous interpretation of the statute," Perecman explained. "Regardless of what the so-called pro-business lobby would have you believe, juries in New York State are free to consider whether an employee's own negligence also caused the accident, and to throw the case out if the sole cause of the injury is the worker's behavior."
"I think the best watchdogs for workers in this state," he added, "are the lawyers who take on their cases, find out who caused the accident and hold them responsible."