Vicarious scaffolding view

When President George Bush signed the federal highway bill last August, he also solved a problem that had been vexing the state’s car leasing industry in New York for years. The federal bill included a ban on vicarious liability, which holds a leasing company liable for a driver’s negligence.

The elimination of vicarious liability had long been a goal of New York car dealers who say the law forced automakers and retail banks out of car leasing. But lawmakers in Albany never got around to eliminating vicarious liability.

Then like magic, there appeared in a massive highway bill Congress passed last summer language annulling state “vicarious liability” laws. The federal bill’s signing brought New York in line with the other states.

Given that history, New York Assemblyman William Barclay (R, C, I- Pulaski) could not be blamed when he recently suggested that a vicarious solution to the notorious New York scaffold liability law (Sections 240 and 241 of the state’s Labor Law). “It’s kind of a nice way out. I almost wonder if it’s worth exploring whether we can get something done at the federal level on 240 and 241,” Barclay told a recent Albany legislative day with the Property Casualty Insurers of America.

The scaffold law makes owners and contractors absolutely liable for “gravity-related” worksite injuries regardless of safety programs, employee negligence or other factors. Contractors and insurers say the law has driven up insurance costs and made it difficult for some contractors to find general liability insurance.

Albany has long considered but never passed bills to change the absolute liability standard to one of contributory negligence for employers who provide safety training and equipment.

Should Washington sweep down to reconfigure the scaffold law as it did vicarious liability it would be in keeping with a growing trend of Washington responding to businesses seeking to overcome state laws or regulations they dislike. As Insurance Journal recently reported, state lawmakers are alarmed about preemption of state authority that is underway in insurance, product liability, tort liability and other areas. The National Conference of State Legislatures’ Standing Committees has identified 72 bills or amendments that it says infringe upon state policy makers.

While the vicarious liability problem was settled with legislation, states are actually more concerned about the rise of federal preemptions through the regulatory process, a process they say does not even give them an opportunity to comment.

“Federal regulatory preemption is nothing more than a backdoor, underhanded means by which unelected federal bureaucrats impose their will on the states,” said New York Senator Michael Balboni, a member of NCSL’s Executive Committee. “No single, unelected individual should be able to wield such power with the stroke of a pen.”

Balboni’s colleague, Barclay, may have been only half-serious in looking to Washington to settle the score over the scaffold law. But stranger things have happened and are happening.