“Cleaning” Under Labor Law § 240(1) Is Narrower Than Its Literal Definition Would Indicate

In Dahar v. Holland Ladder & Mfg. Co. (2012 NY Slip Op 01322), the Court of Appeals rejected the argument that the obvious “cleaning” of a “structure” during the manufacture of a product was protected under Labor Law § 240(1). More specifically, the Court rejected the argument that section 240(1) protects every activity that might fit within the literal meaning of the word “cleaning” as “too simple” and noted that such an argument would lead to an expansion of liability that was not supported by the Court’s precedent and not intended by the Legislature.

To provide further context, the Court noted that plaintiff’s formulation, which it rejected, would mean that “Every bookstore employee who climbs a ladder to dust off a bookshelf; every maintenance worker who climbs to a height to clean a light fixture – these and many others would become potential Labor Law § 240(1) plaintiffs.” In reviewing the present facts, the Court declined to extend the statute “so far beyond the purposes it was designed to serve.”

The Court also noted that the statute’s “central concern is the dangers that beset workers in the construction industry” even while adding that the Court previously refused to limit the statute to tasks that were part of construction, demolition, or repair projects. The Court cautioned, however, that all except one of its “cleaning” cases involved window cleaning, and even then not all window cleaning were within the statutory term, citing its cases on domestic window cleaners.

New York Law Journal Covers Fourth Department Case Precluding "Maternal Forces of Labor" Defense

Today, the New York Law Journal covers the Fourth Department's recent decision in Muhammad v. Fitzpatrick, holding for the first time that a common defense in brachial plexus injury cases, "maternal forces of labor," was properly precluded because the defendant failed to prove that the theory passed the Frye test.  Below is an excerpt from the Law Journal's article:

"In what may be a national first, an appellate panel in Rochester has rejected as scientifically invalid a standard defense in obstetrical medical malpractice cases.

The Appellate Division, Fourth Department, in Muhammad v. Fitzpatrick, 11-01764, upheld Erie County Acting Supreme Court Justice Timothy J. Walker's preclusion of evidence that a newborn's injuries were caused in the birthing process and not by the actions of the doctor or hospital.

Justice Walker [] held that the 'maternal forces of labor' theory advanced by the defense was based on a 'small number of articles written by a few authors, each of whom based their conclusions in part on the writings of other members of that small group.' He said the theory did not satisfy the New York-adopted federal standard for admissibility—Frye v. United States, 293 F. 1013 (DC 1923)—or the foundation rule set by the state Court of Appeals in Parker v. Mobile Oil Corp., 7 NY3d 434 (2006). The Fourth Department unanimously affirmed."