Labor Law § 240(1) provides that owners and contractors must provide safety devices to workers involved in the:
erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure ...
Does interior window washing constitute "cleaning" under the statute? In Brown v Christopher St. Owners Corp., 87 NY2d 938 [1996], the Court of Appeals held that routine household window washing did not fall within the ambit of Labor Law § 240(1). But what about the interior window washing of a commercial building? The Court of Appeals addressed that question yesterday in Broggy v Rockefeller Group, Inc., 2007 NY Slip Op 05775.
In that case the plaintiff was a journeyman window washer who would go from building to building to wash windows. He brought his tools, which consisted of a bucket, soap, a wand, and a squeegee, to the defendant's office building. He and his two co-workers, who were equipped with safety belts for exterior window washing, then began to clean the windows in the eighth-floor offices. The windows were roughly four feet wide and six feet tall. The base of each window was three or four feet above the floor, and the top extended to within roughly six inches of the ceiling. Thus, the top of each window was nine or 10 feet above the floor. The plaintiff's washing technique was as follows. He first applied soap and water to a window's interior surface, using the wand. Then he squeegeed off the soapy water and "wipe[d] the bottom of the window with a towel." Plaintiff cleaned the inside of "about eight" windows in at least three different offices without incident. He did not testify that he required or used a ladder or platform to reach the top of these windows with his wand and squeegee. When he came to the window where the injury occurred, a desk was pushed flushed up against the window, and the top of the desk was at the same height as the window sill. The workers tried to move the desk out of the way but they could not. Thus, the plaintiff stood on the desk to clean the window. While standing with his left foot on the window sill and his right foot on the desk top, the plaintiff lifted the bottom sash. He expected the sash to remain open. But it suddenly slammed down. In an attempt to get his left foot out of the way, the plaintiff lost his balance and fell to the floor and was injured.
Defendants moved for summary judgment dismissing the plaintiff's Labor Law § 240(1) claim.
The Court of Appeals initially rejected the notion that interior window washing in a commercial building could not per se be protected by Labor Law § 240(1). The Court stated:
While interior window washing may not routinely entail the elevation-related risks that exterior window washing almost invariably poses, assigning liability under section 240(1) on this basis would create an arbitrary dividing line unfaithful to legislative intent. The crucial consideration under section 240(1) is not whether the cleaning is taking place as part of a construction, demolition or repair project, or is incidental to another activity protected under section 240(1); or whether a window's exterior or interior is being cleaned. Rather, liability turns on whether a particular window washing task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against.
Under the facts before it, however, the Court of Appeals found that there was no such elevation-related risk facing the plaintiff. The Court stated:
Plaintiff did not testify how high he could reach with his wand and squeegee while standing on the floor. He asserted that he had to stand on the desk, but provided no evidence to show that this was because he was required to work at an elevation to clean the interior of the windows. The desk may have been in plaintiff's way, or it may have been easier for him to reach the top of the windows while standing on the desk, or it may have been quicker for him to climb on the desk than to seek further assistance to move it. To recover under section 240(1), however, plaintiff must establish that he stood on the desk because he was obliged to work at an elevation to wash the interior of the windows. * * * Prior to his accident, plaintiff had cleaned the interior of eight other windows of exactly the same height as those in Room 810, and the record does not show that he needed a ladder or other protective device. The only "tools" that he testified to having used were a wand, a squeegee and a bottle of soap.
Thus, summary judgment was granted to the defendants on the plaintiff's Labor Law § 240(1) claim.
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