The Court of Appeals Clarifies Just How Far the New York Scaffold Law Will Extend to Commercial Cleaning Activities

On October 10, 2013, the New York Court of Appeals, in Soto v. J. Crew Inc., et al., unanimously affirmed both the trial court and the Appellate Division, First Department, and held an employee of a commercial cleaning contractor was not engaged in “cleaning” under New York Labor Law § 240(1) (also known as the “Scaffold Law”), when he fell from a four-foot-tall A-frame ladder while attempting to dust a six-foot-tall display shelf at a retail store and, therefore, was precluded from recovery for his injuries against the store and the building owner.

Labor Law § 240(1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers that are subjected to certain elevation-related risks.  To recover under Labor Law § 240(1), the injured worker must establish: (i) he was engaged in a covered activity, i.e., erection, demolition, repairing, altering, painting, cleaning or pointing of a building structure; and (ii) he was injured as a direct result of not having adequate protection from elevation-related risks.

In Soto, the plaintiff brought suit against the retail store and the building owner based upon various theories, including the violation of Labor Law § 240(1), alleging he sustained injuries while engaged in a commercial cleaning activity. On appeal to New York’s highest court, the Court of Appeals unanimously affirmed the lower courts, finding the Legislature did not intend for the Scaffold Law to provide coverage to injured employees engaged in all cleaning activities occurring in a commercial setting. Rather, “routine, household window washing”-type activities, such as the dusting performed by the plaintiff, do not fall within the purview of the Scaffold Law.

To clarify the reach of the Scaffold Law, the cour, set forth the following guidepost of activities that do not qualify as “cleaning” within the purview of Labor Law § 240(1): (i) routine activities such as the ordinary maintenance and care provided to a commercial property on a frequent and recurring basis; (ii) activities that do not require specialized equipment or expertise nor the unusual deployment of labor; (iii) activities involving insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (iv) activities that are unrelated to an ongoing construction, renovation, painting, alteration or repair project.

Applying the above factors to the instant matter, the Court of Appeals agreed with the lower courts, finding the plaintiff’s dusting of a six-foot-high display shelf did not fall within the ambit of Labor Law § 240(1), but rather, was a mere routine task, with no specialized equipment, knowledge or tools, that involved a height differential analogous to the cleaning of a home, and had no relation to any construction activity.

The instant decision demonstrates the intent of the Court of Appeals to limit any further expansion of the Scaffold Law in the context of commercial cleaning based upon its distinction between covered and non-covered cleaning activities. As a matter of practice, by providing a list, which focuses on those “cleaning” activities that fall outside of the statute as opposed to those that fall within the statute, New York courts, going forward, are granted far less discretion in their interpretation and application of the Scaffold Law in the context of “cleaning.”