By: Carol A. Sigmond
Over the years, there has been debate as to whether the New York State Scaffolding Law (Labor Law §240) applies to window washers working in high-rise residential buildings. The better view is that it does. The New York Scaffolding Law dates from the 1870s and is designed to protect workers from extraordinary risk from working at heights while performing “erection, demolition, repairing, altering, painting, cleaning or pointing… of a building or structure.” The statute makes property owners strictly liable for injuries covered by the statute.
The legal issue respecting window washing in high-rise residential buildings arises out of the statutory language. Originally, the statute was read to mean that “cleaning” was only a covered activity if the cleaning was associated with other covered work, such as “demolition” or “repairing.” This led to the reasonable conclusion that a domestic worker cleaning the interior of windows was not engaged in a covered activity. Connors v. Boorstein, 4 N.Y. 2d 172 (1958) This analysis was extended in Brown v. Christopher Street Owners, 87 N.Y.2d 938, 939 (1996) to provide that “routine household window washing” was not a covered activity. In Brown, a tenant arranged to have five windows washed in a single cooperative unit. The Court of Appeals declined to apply Labor Law §240 to this activity. Brown appears to still hold that routine household window washing is not a covered activity.
The problem with the Brown decision was evident to all. Window washing for commercial high-rise buildings was deemed “cleaning” for purposes of Labor Law §240. The lurking issue was high-rise residential buildings, was such window washing a ‘routine household’ chore exempt from the statute or a dangerous activity that is covered by the statute.
The Court of Appeals recognize the anomaly created by the Brown decision. Starting with Broggy v. Rockefeller Group, 8 N.Y.2d 675 (2007) the court turned from considering who had employed the window washer as the operative factor in whether the activity was covered and started looking at the dangers of the work. In Broggy, the court looked at the actual work done in high rise commercial window washing and the elevation risk to the workers. Evaluating the equipment used, the safety equipment required and the risks to the workers, the court determined that commercial high rise window washing was a covered activity under Labor Law 240 (1).
The Court of Appeals continued this trend in Soto v. J. Crew, 21 N.Y 3d 562, 568 (2013). In Soto, the Court compared and contrasted commercial window washing with “routine household window washing.” According to the court, commercial window washing with an elevation risk, that is a chance that workers might fall from a height and be injured, to be a covered activity, while “routine household window washing” did not have elevation risks.
This left open the narrow issue of whether high rise window washing for residential properties were “routine household window washing.” That question was definitively resolved in Domaszowec v. Panorama Windows, 135 A.D.3d 572 (1st Dept. 2016). In Domaszowec, the First Department ruled that window washing of high-rise residential buildings posed an elevation risk to the workers and was a covered activity. This is consistent with the Court of Appeals approach in Broggy and Soto where the equipment used, the safety devices required and the elevation risk to the worker would determine whether the activity was covered.
Domaszowec leaves in place Labor Law 240 protections for workers cleaning windows off scaffolding or platforms at height, while shielding home owners from Labor Law 240 claims from domestic workers cleaning the windows low rise homes. From a policy perspective, the shift by the Court of Appeals from looking at who was employing the window washer to what was the risk to the window washer in deciding whether the activity was covered was sensible. This is a logic that property owners and window washer employers are able to understand and apply.
At this point, residential property managers should try to ensure the managed properties have windows that can be tipped into the space for cleaning. If that is not possible, the best solution is to have the building retain a commercial window cleaner. The property manager and building are in a better position to negotiate price and insurance coverage than a single unit owner. And the property manager has more control over risks is this activity is a building activity.
This column presents a general discussion. This column is not intended to provide legal advice. You should consult your attorney for specific legal advice.