Today, New York's highest court issued a decision that affects an injured worker's right to compensation under Labor Law Section 240, an absolute liability statute feared by many New York property owners and their contractors and commonly known as the "Scaffold Law." Soto v J. Crew Inc., 2013 NY Slip Op 06603 (October 10, 2013), is a case involving personal injuries allegedly suffered by an employee of a commercial cleaning company hired to provide janitorial services at J. Crew. Mr. Soto fell from a four-foot ladder while dusting a display shelf and sued J. Crew and their landlord. He claimed the ladder fell over, proving that he was not provided with proper protection from gravity related risks as required by the statute.

By way of background, Labor Law Sec. 240(1) imposes absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in certain circumstances. To recover under the statute, the plaintiff must have been engaged in a "covered activity," meaning the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure and must have suffered an injury as "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." The issue presented in this case was whether Soto was engaged in "cleaning" within the meaning of the statute. While commercial window washing constitutes "cleaning" as specified in Labor Law Sec. 240(1), "routine, household window washing" does not. Indeed, routine maintenance of that type generally does not involve the type of heightened elevation-related risks that justify extension of the provision's special protection and has therefore been excluded.

In affirming the decisions of the trial and appellate courts, both of which ruled in favor of the defendants and dismissed the case, the Court of Appeals in Soto clarified that:

"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 Sec. 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project. Whether the activity is cleaning' is an issue for the court to decide after reviewing all of the factors. 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."

In conclusion, while this decision narrows the type of workplace accidents that subject property owners, operators and their contractors to the sharp teeth of NY Labor Law Section 240, such businesses should still protect themselves by way of contractual indemnification provisions and additional insured requirements.