A tile finisher needed a short platform to reach the top of installed bathroom tile to inspect the finished work, after toilets had been installed in a Delta Sky Club lounge. He used a “Kwik Bench” raised platform (“Heights adjusts [sic] from 18" to 32"), and then fell, or stepped off the end, depending on whose testimony one accepts. Under the New York Labor Law, the GC and the owner are strictly liable for his injury.

Worker safety is a critical issue for the industry. Most contractors and subcontractors accept this reality and stress safe work practices. Just the same, the NY law that makes the GC and project owner strictly liable, because the tile worker used a Kwik Bench instead of another platform such as a Baker stage, seems to have created a social compact and not a worker safety program. Remember that this liability is in addition to worker compensation benefits already in effect.

The worker claimed that the GC and owner should have provided a “safer, larger, longer and wider scaffold that had railings; provided a safety harness [and] lanyard that would arrest any fall from a scaffold; provided another contractor to act as a spotter for [the worker] in case he lost his balance; and/or should not have installed the toilet before the tile work was completed because it interfered with [the worker]'s ability to safely reach, inspect, and work on all tiles without losing his balance.” Inside an almost-finished bathroom stall, the options for scaffolding with a safety harness and lanyard to arrest a fall are slim, and these allegations present a different form of overstepping. The case is Gigantino v. Turner Constr. Co., 2016 U.S. Dist. LEXIS 127602 (Sept. 19, 2016) (LEXIS subscription required).

No amount of contract language requiring safe work practices, and no amount of oversight by prime contractors, can ever ensure absolute safety and eliminate missteps by workers who may fail to act properly or safely of their own accord. The NY Labor Law, with its absolute liability, clearly provides duplicative or overlapping protection for workers, but it comes with an added construction cost. Little wonder there have been ongoing efforts to reform the law.