Nonsense on Stilts

How Scaffold Law prevents transportation fixes

RESIDENTS of New York state continue to flee in droves, seeking jobs and lower taxes. The problem is worse in upstate New York because our area has been hit hard with job losses in manufacturing in recent decades and Albany imposes crippling mandates — state programs and regulations paid for in part using local revenue — resulting in the nation’s highest property-tax burden.

Albany just doesn’t get it. Even worse, state policies waste federal dollars — particularly when Washington helps pay for transportation and construction projects.

Take New York’s Scaffold Law. Originally enacted in the late 19th century, before workers’ compensation statutes were passed, it was supposed to protect construction workers injured in work-related falls.

The law allows an injured worker to sue and imposes absolute liability on the property owner and construction employer. So even if a worker were drunk and injured himself in a fall, the law dictates that the builder and property owner are responsible, with no opportunity to argue for a defense of comparative negligence, which limits the amount owners must pay in such cases because the worker contributed at least in part to the injury.

Absolute liability also means construction-insurance costs in the Empire State are higher — indeed, much higher — than in the 49 other states. Since Illinois eliminated its absolute liability standard in 1995, New York is the only state left with such a law.

The result has been higher costs on fewer construction projects in New York. A 2013 Rockefeller Institute of Government study estimated that the state’s construction-liability law increases costs by about 7 percent on projects within New York. And despite the Scaffold Law, it turns out New York state’s construction sites are no safer than those in states where a “comparative negligence” standard of shared responsibility is used.

And it’s not as if some faceless developer is bearing the burden for all this red tape. Everyday New Yorkers must shoulder the cost: A typical single-family home in in New York costs anywhere from $5,000 to $10,000 more than it would without a wholly one-sided Scaffold Law.

Then there’s the pain the law brings to taxpayers in need of major transportation projects. The Tappan Zee Bridge is estimated to have cost $200 million more thanks to the Scaffold Law. The vitally important Gateway Project, including two new commuter-rail tunnels under the Hudson River now estimated to cost $13 billion, could waste potentially hundreds of millions on insurance costs due to the Scaffold Law.

And that pain isn’t spread evenly: Liability for construction accidents on the New Jersey side of the river for the Gateway Project will be governed by comparative negligence; on the New York side, absolute liability. It makes no sense.

Since Albany won’t act, I’ve introduced federal legislation — the Infrastructure Expansion Act — which will require states to apply a comparative-negligence standard instead of absolute liability on all projects receiving federal taxpayer funding. Given America’s infrastructure needs, we shouldn’t waste a single dollar on excessive liability costs when that money could be better used building tunnels, improving bridges and rebuilding roads.

Plus, passing a federal law will also help build momentum to change this law in Albany for all construction, thereby lowering costs for private projects that don’t use federal dollars.

Let’s make New York state a place where necessary transportation and commercial building projects are less expensive by eliminating antiquated rules like the Scaffold Law. By passing the Infrastructure Expansion Act, Congress can reduce costs on new projects and make New York’s economy more competitive.