Not All Cleaning is Protected by the New York Labor Law

One of the most feared statutes to New York Contractors and their insurers is New York Labor Law §240 (1) (the “Scaffold law”).  Under Section 240, an owner and general contractor faces strict liability when an employee falls from a height while involved “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.”  Though the Labor Law was initially enacted to protect construction workers, throughout the years, courts have extended the protection to non-construction workers.  Specifically, in interpreting the term “cleaning,” the Court of Appeals has held that it is not limited to cleaning that was “part of a construction, demolition, or repair project.”  Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 680 (2007).  However, in Dahar v. Holland Ladder & Manufacturing Company, No. 23, NYLJ 1202543033849, at *1 (February 21, 2012), the plaintiff asked the Court of Appeals to extend the statute to protect a factory employee engaged in cleaning a manufactured product.

In Dahar, the plaintiff was standing on a ladder in a factory cleaning a seven foot high “wall module” that was to be attached to a building wall, where it would provide support for pipes.  The ladder broke and plaintiff fell to the ground.  Plaintiff argued that he was “cleaning” and that the wall module was a “structure” under the broad definition by the Court of Appeals, as “any production or piece of work artificially built up or composed of parts joined together in some definite manner.”  Id. at *4 (internal citations omitted).  The Court, however, rejected plaintiff’s argument finding that in all but one case involving “cleaning,” the “cleaning” involved cleaning of building windows (the other case involved cleaning a railroad car).  The Court rejected the statute’s application for an injury suffered while cleaning a product in the course of a manufacturing process.  The Court further stated that if it extended the statute to plaintiff’s activity, the statute would encompass virtually every “cleaning” of any “structure” in the broadest sense of that term.  “Every bookstore employee who climbs a ladder to dust off a bookshelf; every maintenance worker who climbs to a height to clean a light fixture — these and many others would become potential Labor Law §240 (1) plaintiffs.”  Thankfully, even NY’s Court of Appeals recognizes there must be limits to its labor law generosity.

For any questions about this post, please contact Cheryl Fuchs at cfuchs@wcmlaw.com.