Worker Taking Onsite Measurements for Offsite Fabrication Covered Under Labor Law 240 (1)

The Second Department determined that a worker who was injured while he was taking measurements at the worksite for stonework which was to be fabricated offsite was engaged in a covered activity under the Labor Law.  The court further found that the absence of safety equipment supported summary judgment in favor of the worker even though no one witnessed the accident. With respect to “covered activity,” the Second Department wrote:

To invoke the protections afforded by Labor Law § 240(1), a ” plaintiff must demonstrate that he [or she] was both permitted or suffered to work on a building or structure and that he [or she] was hired by someone, be it owner, contractor or their agent,'” to work at the site…. Moreover, the plaintiff must have, at the time of the accident, been engaged in a “covered activity” under the statute…. “Section 240 is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are scarcely in a position to protect themselves from accidents,” and it is to be liberally construed to achieve this purpose…. Here, [plaintiff] had been hired to fabricate sills, lintels, and coping stones to be used in the construction of the subject building. Part of that job included going to the work site and climbing to the roof of the building to take measurements in preparation for the fabrication. Thus, the injured plaintiff was performing a task ancillary to the construction work and was engaged in a “covered activity” within the meaning of Labor Law § 240(1) … .  Gallagher v Resnick, 2013 NY Slip Op 04774, 2nd Dept 6-26-13