Workers who suffer a cleaning accident may be able to obtain compensation under New York’s scaffold law. The scaffold law (formally called Labor Law §240) protects workers in New York State are exposed to height-related risks while they are performing one of the following types of work: “erection, demolition, repairing, altering, painting, cleaning of pointing of a building or structure.”
What Constitutes a “Cleaning” Accident
While accidents that involve “cleaning” are explicitly covered under the scaffold law, an area that has been a point of much scrutiny the past few decades is what exactly constitutes “cleaning” of a building or structure under the statute. The Court of Appeals has recently decided a case, Soto v. J. Crew Inc. which placed limits as to what can be considered “cleaning” work under the statute.
The plaintiff in Soto, was an employee of Whalen Cleaning Services, a commercial cleaning company. His company provided janitorial services for a J Crew retail store. His company assigned the plaintiff to perform daily maintenance at the store. Soto would report to work several hours each day before the retail location opened for business. He would vacuum and mop the floors, clean the bathrooms and empty the garbage. Once the store opened, Soto would complete his shift by spot cleaning, tidying display shelves, cleaning the entrance door and sweeping up debris from the floor.
One the day of the accident, a J Crew employee told Soto to clean a dusty 6-foot high display shelf. Soto used a high duster and a 4-foot A-frame ladder in front of the shelf. As he was dusting the shelf, both Mr. Soto and the ladder fell causing Mr. Soto to sustain injuries. Mr. Soto sued J. Crew and the building owner under the scaffold law and several other theories. The defendants moved for summary judgment, arguing that Soto performed “routine maintenance” and not “cleaning” under the scaffold law. Defendants also argued that even if the high dusting constituted “cleaning” that Soto failed to establish exposure to an elevation related risk. He also failed to establish that the ladder did not constitute a proper safety device to complete the task.
Motions for Summary Judgment
Soto opposed defendants’ motion and cross-moved for summary judgment on his Labor Law §240(1) claim. He argued that all commercial cleaning is covered by the statute. Soto also argued that and he faced height-related risks when required to dust a shelf at an elevated level. In addition, he argued that the ladder was not properly secured and this directly caused his cleaning accident.
The trial court denied Soto’s cross-motion and granted the defendant’s motion. The Appellate Division unanimously affirmed the trial court’s decision. The appeal went to the Court of Appeals. They took this opportunity to develop a test to determine whether work qualifies as “cleaning” under the scaffold law.
The High Court’s Test
The Court of Appeals held: “Outside the sphere of commercial window washing (which we have already determined to be covered), an activity cannot be characterized as “cleaning” under the statute, if the task: 1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; 2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; 3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and 4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project. “
Only after reviewing all the factors can the court decide whether the accident activity is “cleaning”. The presence or absence of any one is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other.
Was Soto’s Accident “Cleaning” Work?
When the Court of Appeals applied those factors to Mr. Soto’s case, they found that his work did not qualify as “cleaning.” Accordingly, the dusting of a display shelf is the type of routine maintenance that occurs frequently in a retail store. The high dusting did not require specialized equipment or knowledge and could be accomplished by a single worker with commonly found tools.
Since the Court of Appeals held that Mr. Soto’s work was not protected under the scaffold law it did not need to consider whether he was subject to height-related risks and affirmed the decision, denying Mr. Soto’s cross-motion and granting defendants’ motion for summary judgment. If involved in a cleaning accident, speak to an experienced attorney to learn whether you have a viable lawsuit.