While working inside a Manhattan building, I was cleaning newly installed windows when I fell off a 5-gallon paint bucket, injuring my leg. What claims do I have?

Worker’s Compensation Claim

As with all workplace accidents, the immediate priority is to seek medical attention at a hospital or doctor’s office. Upon reporting the injury to the medical professional, they will recognize your workers’ compensation claim. As mentioned in previous posts, workers’ compensation benefits cover medical expenses and a portion of lost wages during the recovery period.

The crucial first deadline is to notify your employer of the accident within 30 days of its occurrence to obtain benefits.

Labor Law Claim

Your question raises two distinct issues about Labor Law claims. The first issue is if cleaning interior windows is covered under Labor Law. The second issue pertains to whether falling off a 5-gallon paint bucket constitutes a gravity related risk under Labor Law.

Cleaning Protected by Labor Law

In a previous post, I discussed how the Labor Law protects commercial window washers. Specifically, Labor Law §§ 240 and 202 protect window washers who clean the exterior of large commercial buildings.

But the Labor Law extends its protections beyond commercial window washers. Labor Law § 240 states that “all contractors, owners, and their agents who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure, shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, or any other equipment necessary to provide proper protection to a person employed in such work.” Labor Law § 240. Cleaning falls under the categories of activities protected by this section of the Labor Law.

Routine Cleaning

Cleaning that is routine maintenance is not covered by the Labor Law. For instance, dusting the top of a shelf in a store is not an activity that falls under the purview of Labor Law § 240(1). Soto v J. Crew Inc., 21 NY3d 562, 976 NYS2d 421 (2013). Similarly, routine cleaning of a cement truck after a delivery is not considered “cleaning” within the meaning of Labor Law § 240(1), as held in Bish v Odell Farms Partnership, 119 AD3d 1337, 989 NYS2d 719 (4th Dept 2014).

However, cleaning newly installed windows is not considered routine maintenance. Consequently, the Labor Law covers the type of cleaning you were doing at the time of your accident. Roldan v Molyneux, 227 AD2d 240, 642 NYS2d 297 (1st Dept 1996).

Height Differential

The second and more difficult issue in your case is “gravity-related risk.” A worker must prove that they were exposed to a gravity related risk. In previous posts, I have addressed workers falling from ladders, scaffolds, or hoists. However, you were standing on top of a five-gallon paint drum.

The extent of the elevation may not necessarily determine the existence of an elevation-related risk. Rocovich v Consolidated Edison Co., 78 NY2d 509, 577 NYS2d 219, 583 NE2d 932 (1991). For example, a four to five foot fall from a gate was a gravity related risk. Pimentel v DE Freight LLC, 205 AD3d 591, 169 NYS3d 286 (1st Dept 2022). In Vitucci v Durst Pyramid LLC, 205 AD3d 441, 168 NYS3d 45 (1st Dept 2022), Labor Law § 240(1) was applicable where the plaintiff fell from the edge of a bathtub while installing a shower curtain rod. Finally, the Labor Law protects worker who sank into knee level mud. Sunun v Klein, 188 AD3d 507, 1385 NYS3d 386 (1st Dept 2020).

Similar Cases

In your case, you were using a five-gallon paint bucket to clean windows that extended to the ceiling. There are similar cases that hold that the height from standing on a paint bucket does create a “gravity-related risk.” Consequently, the Labor Law covers your type of case. In Wilson v Niagra University, 43 AD3d 1292, 842 NYS2d 819 (4th Dept. 2007), a worker was injured while attempting to use an overturned bucket to descend into a 3- to 4-foot-deep crawl space. Similarly, in Norton v Bell & Sons, Inc., 237 AD2d 928, 654 NYS2d 512 (4th Dept. 1997), the Court found that a fall from an overturned 18-inch-high drywall bucket was a gravity-related risk covered by the Labor Law.

Smaller Height Differential

However, some courts have held that height differentials of approximately one foot do not pose elevation-related risks. Torkel v NYU Hospitals Center, 63 AD3d 587, 883 NYS2d 8 (1st Dept 2009) (12- to 18-inch height differential); DeStefano v Amtad New York, Inc., 269 AD2d 229, 703 NYS2d 34 (1st Dept 2000) (12-inch ramp); DeMayo v 1000 Northern of New York Co., 246 AD2d 506, 667 NYS2d 400 (2d Dept 1998) (13-inch step from ground to shanty entrance).

In your case, the painting bucket presented a gravity-related risk. Therefore, you will not only have a Worker’s Compensation claim, but also be able to bring a case against the owner and general contractor for your personal injuries.

By James Santner, Esq.

If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.