Americans expect their tax dollars to be used wisely, whether it’s investing in basic infrastructure, schools, or public services. However, a single law in New York is inflating the cost of federally funded projects and wasting billions of dollars contributed by taxpayers from every state.
This is not just a regional problem. It’s a national issue that affects every American who pays federal taxes.
The Scaffold Law, a 19th-century statute that exists only in New York, imposes absolute liability on contractors and property owners for gravity-related construction injuries, regardless of the worker’s fault. All 49 other states use comparative liability, a common-sense standard that assigns responsibility based on actual fault. The law dates to 1885, long before modern safety regulations and standards were put in place. Today, it’s abused by bad actors who stage accidents and manufacture claims, propping up a cottage industry of medical and legal providers who profit from high payouts.
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While New York stands alone with this law, taxpayers everywhere are footing the bill with staggering consequences. Reports estimate that the absolute liability law adds up to 10% to all construction costs compared with other states and about $785 million annually to public construction costs. These inflated expenses affect everything from schools and roads to transit systems and housing units.
Right now, a promising solution is on the table, and Congress has an immediate way to act. Rep. Nick Langworthy’s (R-NY) Infrastructure Expansion Act would introduce sanity by applying preemption to any project in New York that received federal funding. In other words, when Washington is paying the bill, New York’s outdated absolute liability standard would not apply.
Instead, federally funded projects for housing, transportation, environment, and technology would follow the same comparative liability standard used everywhere else. As lawmakers prepare to reauthorize the surface transportation bill, including this preemption language would finally protect precious taxpayer dollars from being wasted on New York’s liability loophole.
The unpredictable risk environment has driven many national insurers out of New York, further increasing costs. Less competition leads to liability premiums that are 2 to 5 times higher than in other states, driving up construction costs across all levels, from subcontractors to major public works projects. This not only makes it more expensive to build in New York but also means that taxpayers in Texas, Florida, Ohio, and every other state are subsidizing New York’s refusal to modernize its liability system.
Moreover, the Scaffold Law does nothing to improve worker safety. New York’s construction accident rate is no better than states with comparative liability; in fact, it is worse than many. New York has a higher construction injury rate than Pennsylvania, Georgia, Arizona, and 21 other states. When Illinois repealed a similar law in 1995, construction fatalities declined, showing that reform can enhance safety. Because contractors and property owners are held liable no matter what, unscrupulous lawyers and medical professionals exploit the system, driving up fraudulent claims and encouraging litigation.
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Reforming the Scaffold Law is not anti-worker — it is pro-safety and pro-accountability. But in New York, reform attempts have been blocked for decades because trial lawyers have an iron grip on the legislature, ensuring this statute remains untouched. Taxpayers across the country should not be forced to subsidize one state’s entrenched special interests.
Republicans in Congress have long championed fiscal responsibility. Addressing the Scaffold Law falls right in line. The law is an anomaly, and a federal fix is long overdue. Including preemption language in the Surface Transportation Reauthorization provides a practical path forward. Congress needs to ensure taxpayers are no longer forced to pay for one state’s decision to cling onto a legal relic that distorts federal spending.
Bill Shuster is a former chairman of the House transportation and infrastructure committee representing the Building Trades Employers Association of NYC. John Faso is a former member of the House transportation and infrastructure committee representing the Build More New York Coalition.