By ANNEMARIE FRANCZYK
Business First

A statewide business coalition with Buffalo roots is not backing down from its efforts to topple a 122-year-old law that organizers say is harming New York's construction industry.

Businesses for a Better New York is taking its challenge of the state's "scaffold law" to an appeals court in November after two tries before federal judges here.

Section 240 of the state's Labor Law, known as the scaffold law, makes owners, contractors and employers strictly liable for gravity-related worksite injuries, regardless of employee negligence or safety measures taken by the employer.

"We are automatically liable regardless of whether the employee was drunk or told not to go up there," said Frank DeCarlo, coalition cofounder and president of Paragon Restoration, a Depew company that remediates damage caused by fires, water and mold. "We cannot defend ourselves in court. Isn't that a constitutional right? We're being denied due process."

He and the coalition membership - in the hundreds, from sole proprietors to major construction companies - are seeking fairness, not a pass on employee safety.

"If there's an employer who fails to comply by OSHA rules and regulations and puts his employees in an unsafe situation, they are entitled to suffer the consequences," DeCarlo said.

The lawsuit argues that the law is pre-empted by Occupational Safety and Health Administration regulations. It also violates the equal-protection and commerce clauses of the federal constitution by driving up insurance costs for New York companies compared to those in states with no liability clauses, said the group's attorney, Hugh Russ, a partner at Hodgson Russ LLP.

The lawsuit was filed by Businesses for a Better New York a year ago in federal court in Buffalo after failed attempts to get the state Legislature to rescind or modify the scaffold law. It was dismissed first by a U.S. magistrate judge and then in U.S. District Court. Next stop: U.S. Court of Appeals, 2nd Circuit, in New York City. Briefs are expected to be filed by Nov. 30, with arguments following in early 2008.

"We're not going quietly," Russ said. The coalition wants a chance in court to show that the scaffold law does not make New York a safer place to work and drives up insurance premiums dramatically in New York compared to other states, he said.

While Businesses for a Better New York is taking the judicial route, organizations such as Unshackle Upstate New York, the coalition spearheaded by the Buffalo-Niagara Partnership, is attempting reform from a legislative approach, including the scaffold law as part of its lobbying agenda once again in 2008.

Enacted in 1885 primarily to protect immigrant workers building skyscrapers in Manhattan, the scaffold law pertains to falls from scaffolds and ladders and other gravity-related injuries, including those caused by items that fall. The law was thought to have outlived its usefulness and become obsolete after the passage of the Worker's Compensation Law in the early 1900s.

Plaintiffs' attorneys argue, however, that the workers' compensation program doesn't go far enough to pay workers for some of the dramatic injuries that occur from a fall, especially those that affect a worker's future livelihood. They say the law is a powerful tool to use against mighty corporations, offering fair protection for people who take on hazardous jobs in high places.

The law frees the worker from responsibility and makes the employer solely to blame, and that's what makes the law unfair to owners, contractors and employers, said defense attorney Michael Perley, a partner at Hurwitz & Fine PC.

"You will see actions by the employee that the court will disregard, that in the large part (were) the reason why the employee was injured," said Perley, who has 10 such cases pending. "I've been very successful in defending the issue of liability, but I would be lying if I didn't tell you a majority of cases generally end up with a determination of liability."

Perley said the Court of Appeals has made some precedent-setting decisions that considered the injured worker's appropriate use of equipment provided by the employer. The decisions could pre-empt a legislative solution, he said. Ultimately, Perley would like to see the law change so that the same safety measures are required of owners and contractors while allowing the defense to find out if the employee did something to contribute to the injury, presenting the jury to weigh all the relevant issues.

In Western New York, juries have awarded injured workers upwards of $5 million in scaffold-law cases. Critics say it's a scenario that has driven up insurance costs, adding between $5,000 and $10,000 to the price of a newly built home, and caused the loss of 86,000 construction jobs in the past eight years. DeCarlo has had to make strategic business decisions he believes he wouldn't have faced without a scaffold law.

Despite not having any employee become injured, the company's insurance rates are "off the charts," DeCarlo said. When his liability insurance rates hit $45,000 a few years ago, he cut the employees at Paragon from a dozen to four and has kept employment there to ensure low exposure to risk. Expansion, he says, is not an option.