Bauer redux:
of window washers, statutes, and rules

A major revision in 1937 added a direct reference to the industrial board's approval of specific devices. The section now began:

On every public building where the windows are cleaned from the outside, the owner, lessee, agent, manager, or superintendent in charge of such building shall provide, equip and maintain approved safety devices on all windows of such building. The owner, lessee, agent, manager or superintendent in charge of any such public building shall not require, permit, suffer or allow and window in such building to be cleaned from the outside unless means are provided to enable such work to be done in a safe manner in conformity with the requirements of this chapter and the rules of the industrial board (L 1937, ch. 84, § 2).

A 1938 amendment did nothing but reflect the new name of the industrial board, henceforth known as the board of standards and appeals (L 1938, ch. 657, § 5). The next substantive change in the section came in 1942. Here, for the first and only time, the statute named a specific safety device:

The owner, lessee, agent and manager of every public building shall install and maintain anchors on all windows of such building or provide other safe means for the cleaning of the windows of such building as may be required and approved by the board of standards and appeals. The owner, lessee, agent, manager or superintendent of any such public building shall not require, permit, suffer or allow any window in such building to be cleaned unless such anchors or other means are provided to enable such work to be done in a safe manner in conformity with the requirements of this chapter and the rules of the board of standards and appeals (L 1942, ch. 826, § 1)

The final alteration to the section came in 1970. Technology had passed the statute by; curtain-wall skyscrapers have neither windows that open nor window frames with room for anchors. The legislature thus removed the reference to anchors, requiring that potential defendants "provide such safe means for the cleaning of the windows and of exterior surfaces of such building as may be required and approved by the board of standards and appeals" (L 1970, ch. 822, § 1). Other language referring to the board was also changed; instead of being permitted to make rules supplemental to the statute it was now allowed to do so "to effectuate the purposes of this section." One other change, not referred to in the legislative history of the 1970 amendment, was the omission of the final clause of the statute as it had stood since its inception: "the absence of any such rules shall not relieve any person from the responsibility placed upon him by this section"

This omission was not discussed by the Court of Appeals in deciding Bauer. Its reasoning was this:

For some time before it was amended in 1970, Labor Law § 202 required that owners, lessees and others responsible for public buildings install and maintain anchors on all windows. This mandate was removed in 1970 and replaced by language that referred exclusively to the requirements of the Board of Standards and Appeals (L 1970, ch. 822). Thus, whereas the absence or inadequacy of anchors may in the past have constituted a direct violation of a specific requirement contained in the statute, after 1970 any particular safety standard required reference to the Industrial Code.

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Thus, under the prior, 1942, version of Labor Law § 202, strict liability could result from the absence or inadequacy of anchors because that was an explicit requirement of the statute. In addition, to the extent that the 1937 version of section 202 required that approved safety devices be supplied and maintained, and that, proof that no safety devices at all were provided could form the basis for strict liability (as well as a finding of negligence per se). That is so because--unlike the current version of the statute--the absence of any safety devices was a violation of the statute itself (see, Teller [v Prospect Heights Hosp.], 280 NY [456] at 460; Pollard v Trivia Bldg. Corp., 291 NY 19).

It is difficult to see what textual changes justify this interpretation. If the key distinction between absolute and relative liability versions of section 202 is the reference to anchors, it should follow that the section imposed absolute liability from 1942 to 1970 only; but the cases finding absolute liability all date from the 1930s. Instead of the language "as may be required and approved by the board of standards and appeals" the older statute used the phrase "approved safety devices." But both phrases surely incorporate the rules of the board to the same degree. By process of elimination, then, the key clause in the earlier statute would be that which requires that no window cleaning be done "unless means are provided to enable such work to be done in a safe manner in conformity with the requirements of this chapter and the rules of the industrial board". But the current section contains almost identical, disjunctive language: statute and rules may be violated separately or together.

The real difference between Bauer and the earlier cases is not the way the words are parsed as the activity the court engages in. Since Ross v Curtis-Palmer (81 NY2d 494) the Court of Appeals has been categorizing statutes by whether they impose absolute or relative liability. None of the older cases on section 202 do this. In Pollard, "no safety appliances of any kind were furnished" (291 NY 19, supra, at 24; see also, Homin v Cleveland & Whitehill Co., 281 NY 484, 487-488). The plaintiff in Teller, on the other hand, alleged merely that anchors were not provided, and the court found that it could not construe the case as one alleging a statutory violation (280 NY 456, supra, at 459-460; the case was governed by the pre-1942 law). These cases distinguished between absolute liability cases and those arguing negligence, but they knew no distinction between absolute and negligence liability statutes.

The current rule makes this fact-based inquiry more difficult. In addition, it tends to obscure the differences in the way the board operated in different areas of the law. For example, the regulations implementing section 241 (6) set out detailed standards of conduct. Under section 202, however, the board formulates no rules. Instead, it is asked to approve safety devices. Requiring window washers to work with no devices at all is a statutory violation; but supplying them with a device not on the approved list is also a violation of the statute, because the section itself specifically mandates the use of devices on that list and none other. There are, in fact, three different types of misconduct covered by Section 202. The first is the failure to supply any safety devices whatsoever, and the second is the use of unapproved devices. The third arises from fact patterns such as inadequate maintenance of safety devices, and one might argue that only this case constitutes negligence instead of a statutory violation.

If the older cases did not classify statutes the way the Court of Appeals does now, how did they decide if the plaintiff's negligence was a defense? It is true that, as the Bauer Court said, Koenig "did not hold that Labor Law § 202 was a strict liability statute"; but such a classification was not part of the jurisprudence in 1948. Instead, the decision turned on whether the statute

is designed to protect a definite class of persons from a hazard of definable orbit, which they themselves are incapable of avoiding (Koenig v Patrick Constr. Corp., supra, 298 NY, at 317)

Since the plaintiff's cause of action does not rest on negligence, contributory negligence does not constitute a defense. Indeed, the very purpose of the statute was to protect plaintiff's intestate and others in like position from the consequences of their own negligence. It would be strange, therefore, if the same negligence could defeat the operation of the statute (250 App Div, at 116).

Section 202 was once interpreted much more like the Scaffold Law, which is not surprising considering the dangers both seek to guard against. It might seem that the Legislature intended to guarantee window washers' safety even in 1970, when it prohibited washing windows "unless such means are provided to enable such work to be done in a safe manner". On the other hand, insurer's liability, such as developed in the Scaffold Law cases, has its own difficulties. From the facts in Bauer it appears that the equipment provided was at least adequate, and the plaintiff failed to keep tied on to one of the anchors at all times, as is necessary. It is thus hard to argue with the result; but it would be an encouraging development if the interpretation of section 202 were to remain open to the fact-based inquiries found in the earlier cases.

An edited version of this paper appeared in the June 11, 2002 edition of the New York Law Journal.

Written contents are © 2001 Andrew V. Siracuse. Design © 1997 Michael Steinberg.