What is a “covered activity” in construction accidents?
Aug 02, 2019 | 10325 views | 0 0 comments | 712 712 recommendations | email to a friend | print

In construction accident cases involving either a falling worker or a falling object, an injured construction worker does not have to perform work at a large project to be provided protection under the statute. In a recent case, an employee of a kitchen plumbing supply company was instructed to run thermostat cable wiring through a wall on the second floor of the building. The employee typically worked at the building as a salesman.  While he was performing this work, he stepped on a thin, unsecured piece of Styrofoam covering a rectangular duct opening in the floor.  As a result, the Styrofoam broke beneath him and he fell approximately 15 feet to the building’s first floor.

Construction Law § 240(1) protects construction workers from gravity-related risks such as falling from a height or being struck by a falling object.  The statute states that construction site owners and general contractors are held strictly liable for violations of this law, regardless of whether they control the work being performed. The injured worker’s comparative fault cannot be considered, which makes this statute very plaintiff-friendly.  However, there are limits to this statute.  To sue under law, the construction worker must demonstrate that they were engaged in one of the enumerated covered construction activities at the time of the accident. There are limitations to what is a “covered activity” – for example, maintenance work is not one of them.  

The injured worker sued the building owner under Construction Law § 240(1).  At a very early stage of this litigation, before depositions, the plaintiff (worker) moved for summary judgment. This is a special request to the judge to assign entire liability for an accident to the party being sued. The trial judge granted his claim against the defendant - building owner.

The defendant appealed arguing discovery had not taken place and the motion was premature.  The appellate court disagreed and affirmed the lower court’s decision, reasoning that the defendant failed to demonstrate how further discovery might reveal or lead to relevant evidence or that facts essential to oppose the motion were exclusively within the plaintiff’s control. 

In addition, the appellate court held under these circumstances that the injured worker was protected under Construction Law § 240(1).  To establish a violation of this section of law, a plaintiff must demonstrate that he was engaged in a covered activity as defined by the statute; that the property owner, its contractor, or its agent failed to provide a safety device necessary to protect workers from elevation related risks and that this failure was a proximate cause of his accident and injuries. 

Although not discussed by the court, it was undisputed that the plaintiff’s job at the time of his accident was a "covered activity" within the meaning of Construction Law § 240(1).  The work at issue, involving the installation of cable wiring through a wall, was an “alteration” of a structure that the courts considered a “significant physical change” to the building.

Here, the appellate court held that plaintiff’s evidence established a violation of Construction Law §240(1) as he fell through an opening in the floor where a safety device was not installed to protect him from falling.  The plaintiff successfully established this violation, as his fall through the opening resulted from an elevation related hazard that caused his injuries.  In opposition, the defendant failed to offer any evidence that refuted the plaintiff’s showing of a Construction Law §240(1) violation.  As such, the plaintiff established an entitlement to summary judgment on his claims under Construction Law § 240(1) against the building owner.

If you or someone you know has been the victim of an accident, please reach out to us for a free legal consultation by calling us 24/7 at 212– 514–5100, emailing me at swp@plattalaw.com or visiting our law firm in lower Manhattan (42 Broadway, Suite 1927). You can also ask us questions through the 24-hour chat box on our website (www.plattalaw.com). We offer free consultations for all potential personal injury cases.

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