In 2008 a construction crane collapsed on the East side of Manhattan, killing seven people and injuring more than twenty. The dead and injured included both construction workers and people with no connection to the building site. Several nearby buildings were destroyed and eighteen had to be evacuated, leaving scores of people homeless.
I lived in New York City then, and remember well the shock and sorrow that we all felt. As a result of the accident, New York City revised its building code, adding new requirements for the use of construction cranes in order to provide its residents with protection from the possibility of a similar devastating accident.
At the same time, the Occupational Safety and Health Administration (OSHA) was in the process of updating its own requirements for construction cranes, to make sure that the construction workers operating those cranes and working around them were not endangered unnecessarily. As required by law, OSHA’s process allowed comment from the public, and New York City submitted comments, asking that the new federal requirements would not preempt the city ones. Preemption is a legal concept arising from the fact that federal laws generally take priority over state and local requirements, and in some cases may invalidate the state and local laws.
In this case, however, OSHA explained in its 2010 standard for construction cranes that its standards do not generally preempt city building codes because those codes are intended to protect all of the inhabitants of a city, and do not impose requirements based on employment status. OSHA standards, on the other hand, are intended only to protect employees.
Nonetheless, a trade association representing owners and operators of construction cranes in New York City filed a suit in federal court, asking the court to decide that the crane provisions of the New York City building code were preempted by the OSHA standard, and therefore invalid. My office participated in that case, helping the court understand the purpose of OSHA standards, and the limited effect they have on other laws. We explained that the OSHA crane standards had the single purpose of protecting construction workers and that allowing those standards to invalidate the broader city building code could have repercussions far beyond this case, for example, putting at risk municipal fire and electrical codes across the nation.
Yesterday, the court issued a decision agreeing with us. The court’s decision gave special weight to our “persuasive” position. The decision also explained why New York City’s rules are necessary to protect its residents. It pointed out that in a city as densely built up as New York, construction crane accidents necessarily endanger members of the public. It noted the large number of deaths and injuries that had been caused by crane accidents before the city adopted its new rules. “If a crane falls in New York City, someone is almost always there to hear it – and be hit by it,” the judge said.
By upholding the New York City crane laws, this decision will save lives. Shortly before the 2008 crane collapse a young woman from Florida came to Manhattan to celebrate St. Patrick’s Day with friends. According to news reports, she was standing in the kitchen of her friend’s apartment when the crane collapsed. Her body was pulled from the wreckage four days later. This decision will prevent other people from suffering her fate.
M. Patricia Smith is the Solicitor of Labor.