NY Court of Appeals Considers Whether Cleaning Windows While Located Inside of Building Poses an Elevation-Related Risk
In Broggy v Rockefeller Group, Inc. 2007 NY Slip Op 05775, the plaintiff was employed as a window washer and was injured while located inside of a commercial building when he was washing the interior side of the building's windows. He was standing on a desk located in the room, and then stepped onto the windowsill, at which point he fell onto the floor.
The plaintiff brought suit pursuant to Labor Law 200, 202, 240 (1) and § 241 (6) alleging that he was injured "when he fell from the window sill which was being used as an elevated platform or scaffold from which to perform commercial window cleaning."
In reaching its decision, the Court first noted that window cleaning at a commercial facility is a specifically enumerated activity covered by Labor Law 240(1), even if occurring at a non-construction site.
The Court concluded that the plaintiffs failed to establish that an elevation-related risk was encountered by the plaintiff and offered instructive language regarding the types of cleaning specifically covered by Labor Law 240(1):
While interior window washing may not routinely entail the elevation-related risks that exterior window washing almost invariably poses...(t)he 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.
The burden of showing that an elevation-related risk exists, and that the owner or contractor did not provide adequate safety devices falls upon the plaintiff. Here, plaintiffs did not fulfill this burden. 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. Moreover, summary judgment in favor of defendants is proper because the evidence in this record demonstrates as a matter of law that plaintiff did not here need protection from the effects of gravity. 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.