Making an Impact. Liability: Who is Chasing Us Now? Shari Natovitz Vice President, Risk Management Silverstein Properties

Transcription

1 Making an Impact Liability: Who is Chasing Us Now? Shari Natovitz Vice President, Risk Management Silverstein Properties 1 SENY Professional Development Conference April 10, 2012

2 Disclaimer I am not an Attorney and I don t play one on TV The information included in this presentation is not offered as legal advice or opinion I did not stay at a Holiday Inn Express The presentation is offered from the risk management perspective of an Owner 2

3 3 Let s Start with a Video

4 Discussion Points Continue to address worker safety, OSHA, etc Use these skills to manage the 800 pound gorilla 4

5 Labor Law What is it Financial Impact Making a Difference 5

6 Our Starting Point 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. The tradeoff between assured, limited coverage and lack of recourse outside the worker compensation system is known as "the compensation bargain." 6

7 Our Starting Point 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 NOT SO employee's right to sue his or her employer for FAST the tort of negligence. The tradeoff between assured, limited coverage and lack of recourse outside the worker compensation system is known as "the compensation bargain." 7

8 Welcome to New York Home of Labor Law The only state where WC is NOT the sole remedy Where Plaintiff Attorney s maintain a jobsite presence 8

9 9 What s wrong with these pictures?

10 The Problem 10 When general contractors fail to provide a safe work environment, they and the Owner may be liable for construction accident injuries. Labor Law Section 240, formerly called the scaffold law, protects construction workers from construction injuries that occur due to gravity-related accidents. For example, if a trench, ladder, scaffold or other object collapses while an employee is working on it, the general contractor or property owner may be responsible for the injuries. The same is true if a worker fell from a height or if an object fell on the worker. Worker must show that he was NOT provided with adequate safety devices as defined by the statute

11 The Problem 11 When general contractors fail to provide a safe work environment, they It s and No the Longer Owner may Just be a liable for construction accident injuries. WC Case Labor Law Section 240, formerly called the scaffold law, protects construction workers from construction injuries that occur due to gravity-related accidents. For example, if a trench, ladder, scaffold or other object collapses while an employee is working on it, the general contractor or property owner may be responsible for the injuries. The same It is is true Now if a All worker about fell from a height or if an object fell on the worker. the Liability! Worker must show that he was NOT provided with adequate safety devices as defined by the statute

12 Who is Chasing You Now? 12 The Attorneys: If you were injured in a roof fall, ladder fall, scaffolding collapse, or any other gravity-related accident, the labor law may hold the property owner or general contractor liable. Consider calling a knowledgeable New York construction accident attorney at the Law Firm of for more information. You can schedule a free, noobligation consultation Advertising, Meetings with Labor, Stationed outside Job sites (mugs, jackets, tee-shirts and Word of Mouth

13 Liability: Who is Chasing Us Now? Every Plaintiff s Attorney in the State 13

14 What s the Result Who is Impacted General Contractors Owners (not just projects, building owners) Trades Check your indemnification and additional insured provisions What s the Impact Retained Losses Renewal Pricing Coverage Availability Reputation 14

15 The Cost of Losses 15 Description of Loss WC Liability Fall or Slip from Ladder or Scaffolding 26, ,168 Fall or Slip On Same Level 84, ,145 Fall or Slip Miscellaneous 55, ,899 Fall Or Slip In Building/In Doors 48, , States and District of Columbia Additional Cost - Claimant Fell On Job Site 3,744 58,644 Claimant Fell On Job Site 41, ,904 New York ONly Fall Or Slip In Building/In Doors 76, ,891 Claimant Fell On Job Site 4, ,362 Claimant Fell On Job Site 34,750 2,145,499 Claimant Struck Object Or By Object 15, ,129 Fall Or Slip In Building/In Doors 23, ,550 Claimant Fell On Job Site 7, ,022

16 The Cost of Losses 16 Description of Loss WC Liability Fall or Slip from Ladder or Scaffolding 26, ,168 Fall or Slip On Same Level 84, ,145 Fall or Slip Miscellaneous 55, ,899 Fall Or Slip In Building/In Doors 48, ,392 Additional Cost - Claimant Fell On Job Site 3,744 58,644 Claimant Fell On Job Site 41, ,904 New York ONly Fall Or Slip In Building/In Doors 76, ,891 Claimant Fell On Job Site 4, ,362 Claimant Fell On Job Site 34,750 2,145,499 Claimant Struck Object Or By Object 15, ,129 Fall Or Slip In Building/In Doors 23, ,550 Claimant Fell On Job Site 7, ,022

17 The Cost of Losses 17 Description of Loss WC Liability Fall or Slip from Ladder or Scaffolding 26, ,168 Fall or Slip On Same Level 84, ,145 Fall or Slip Miscellaneous 55, ,899 Fall Or Slip In Building/In Doors 48, ,392 Claimant Fell On Job Site 3,744 58,644 Claimant Fell On Job Site 41, ,904 Fall Or Slip In Building/In Doors 76, ,891 Claimant Fell On Job Site 4, ,362 Claimant Fell On Job Site 34,750 2,145,499 Claimant Struck Object Or By Object 15, ,129 Fall Or Slip In Building/In Doors 23, ,550 Claimant Fell On Job Site 7, ,022

18 Let s Expand Our Focus 18 Workers Compensation Not the Sole Remedy NY Labor Law Holds Owners and GC s to Absolute Liability for gravity related accidents It s scope goes beyond construction sites to protected workers performing protected activities Safety and Risk Management can crack Absolute Liability

19 Labor Law 240(1) Scaffolding Statute Labor Law 240(1) Scaffolding Statute 19 Designed to protect workers from gravityrelated hazards Falling from an elevated working position; Being struck by an object improperly hoisted or inadequately secured; Being pulled by a falling object. Injury caused by the application of the force of gravity Wilinski against 334 East 92 nd Housing Development Fund Absolute liability plaintiff s own negligence doesn t matter

20 Labor Law 240(1) Scaffolding Statute Who Does it Apply to? Applies to all contractors, owners and their agents Title doesn t dictate; rather it s what you do Do you have the authority to control the work 20

21 Labor Law 240(1) Scaffolding Statute Protected Activities 21 Activities protected under Labor Law 240(1) Erection, demolition, repairing, altering, painting, cleaning, pointing. Not routine maintenance; Need significant physical change to constitute alteration. Cleaning need not be incidental to ongoing construction Braggy v. Rockefeller

22 Labor Law 240(1) Scaffolding Statute Responsibility to Provide Protection 22 Must provide safety devices that are constructed, placed and operated so as to give proper protection Scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices Worker must show he was NOT provided with proper protection

23 23 Making an Impact: When is Absolute NOT Absolute

24 Labor Law 240(1) Scaffolding Statute Defenses to Absolute Liability 24 Must be violation and violation must be proximate cause of injuries. Injury only tangentially related to a fall. Sole Proximate Cause normal and logical response Conclusion that the worker s actions were the only reason the accident occurred enumerated jobsite safety regulations and orientation signed by workers. Recalcitrant worker

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26 Impact Opportunities Orientation Training Accident Report Evidence 26

27 The Process Pre-Loss 27 The RFP/Contract Indemnification Additional Insured Safety Requirements Job Analysis Orientation Task Training Tool Box Talks Equipment Location Condition The Accident Post Loss Initial Investigation The Accident Report Witnesses Statement of Worker Preserving Evidence Context is Critical Securing Documentation Treat as Liability Claim

28 The Team 28 Internal Corporate and Field Safety Professionals The Risk Management Department Corporate Counsel Procurement Project Manager, Building Manager Foremen and Superintendents Claims Professionals External Your Carrier(s) Panel of Attorneys Your Subcontractors On Site Medical

29 The Cost of Losses 29 Description of Loss WC Liability Fall or Slip from Ladder or Scaffolding 26, ,168 Fall or Slip On Same Level 84, ,145 Fall or Slip Miscellaneous 55, ,899 Fall Or Slip In Building/In Doors 48, ,392 Claimant Fell On Job Site 3,744 58,644 Claimant Fell On Job Site 41, ,904 Fall Or Slip In Building/In Doors 76, ,891 Claimant Fell On Job Site 4, ,362 Claimant Fell On Job Site 34,750 2,145,499 Claimant Struck Object Or By Object 15, ,129 Fall Or Slip In Building/In Doors 23, ,550 Claimant Fell On Job Site 7, ,022

30 Potential Defenses 30 Sole Proximate Cause Accident Investigation root cause 99% isn t Enough Recalcitrant Employee Worker was instructed to use equipment/follow procedure Failed to follow instruction, training Necessary equipment provided or available Employee knew location of equipment

31 Pre Loss = Think Defense Safety as a Contractual Requirement Orientation Documentation Critical - Worker Sign Off Specificity Language Challenges Use Pictures Video PPE, Ladders, Scaffolds, etc Instruct Not Just on use, But Also Accessibity/Location Consider Posting 31

32 Blake v. Neighborhood Housing services of NYC (2003) FACTS: Plaintiff failed to lock clips on extension ladder RULING: No prior problems experienced No violation of LL 240 Plaintiff sole proximate cause 32

33 Montgomery v. Federal Express (2005) FACTS: Plaintiff climbed onto roof using a bucket rather than obtaining a nearby step ladder RULING: Plaintiff sole proximate cause 33

34 Torres v. Monroe (2004) FACTS: Drywaller mounts an A-frame ladder that rests on Baker scaffold. Scaffold slides and Plaintiff falls 13 feet RULING: LL violation. Inadequate device to complete the task, comparative fault is not a defense 34

35 Cahill v. Triborough Bridge (2005) FACTS: Plaintiff refused to use lanyard. Had been instructed at safety meetings; was also warned having been caught before RULING: Deemed recalcitrant worker Plaintiff sole proximate cause 35 Shows Importance of orientation and tool box talks

36 Post Loss - Investigation 36 Just the facts Opinions, Conclusions, Lessons Learned make the Plaintiff s Case Witness Statements Pictures/Video - Context The Equipment The Surrounding Work Area Accident Report should include positive findings

37 Can You Make Difference? 37 Yes.. But it is Tough It s Refocusing Nothing New Pre-Emptive Loss Management Eliminating Even One Claim is Significant Average Cost Ranges from $300,000 to $1M Deductible Savings Renewal Impact Cost Availability

38 Your Questions Thanks to MALAPERO & PRISCO LLP HARRINGTON, OCKO & MONK, LLP CHARTIS WILLIS CONSTRUCTION 38