$7.25m for worksite injury

Topic: SEC. 240 LABOR LAW – ABSENCE OF FALL PROTECTION ON STAIRWAY USED AS WORK PLATFORM DURING HOISTING OF MATERIALS AS EXISTING LOFT BUILDING WAS BEING ALTERED TO RESIDENTIAL CONDOMINIUMS – COMMINUTED BURST FRACTURE AT C-6 – PERMANENT PARAPLEGIA

Result: $ 7,250,000 Recovery

County: Kings County

Facts: A male plaintiff laborer, age 31 at the time, who was working on a former loft building that was being converted into residential condominiums, contended that he was not provided fall protection while engaged in assisting the hoisting of metal sheeting through the center portion of the staircase.  The plaintiff contended that while he was standing approximately 12 feet above the floor, a piece of sheeting slipped from the hoist and knocked him to the ground below.  The plaintiff suffered a comminuted burst fracture at C-6 which has left him a permanent paraplegic.

The evidence disclosed that the metal sheeting was being hoisted through openings that had been made in the center of the staircase at each level.  The plaintiff moved for summary judgment under Labor Law Sec. 240.  The defendant and third-party defendant employer denied that Sec. 240 should apply in this situation involving a permanent stairway and crossed-moved for summary judgment.  The plaintiff argued during the motion that applicable case law supported his position that Sec. 240 should apply in this situation in which the stairway was being used as a work platform to effectuate the substantial interior alteration which involved changing the building from a loft-type building to residential condominiums.  The case settled prior to any judicial determination on this issue.

The plaintiff suffered a comminuted burst fracture at C-6 and was immediately rendered paraplegic.  The plaintiff also contended that initially, he suffered some hand and arm weakness.  The evidence reflected that after undergoing a fusion from C-5 thru C-7, the plaintiff was transferred to Mt. Sinai Hospital where he received in-patient rehabilitation services for four months.  The plaintiff continues to receive physical therapy on an out-patient basis.

The plaintiff indicated that through extremely hard work in therapy, he has been able to regain a significant degree of relative independence.  The plaintiff maintained that the initial arm and hand weakness has greatly improved, indicating that he is able to readily transfer himself to and from his wheelchair and that he is also able to drive.  The plaintiff would have testified that he is attempting to lead as active a life as possible and faces the future with hope.  The plaintiff contended, however, that he suffers permanent sexual dysfunction, must catheterize himself four times per day for urination and must use laxatives and a stimulator daily for bowel movements.  The plaintiff, who is unmarried, would have related that he resides in a two family house and that although he lives on the first floor, there are 4- 5 steps leading to his apartment.  The plaintiff contended that he must be carried to and from his building in his wheelchair.

The plaintiff maintained that he obviously can no longer work in the construction field and would have introduced evidence of earnings of approximately $ 50,000 per year.  The defendant would have contended that the plaintiff can work in alternative sedentary fields.  The plaintiff would have countered that his talents and inclinations geared him towards physical labor and that as a practical matter, he is permanently unemployable.  The plaintiff further maintained that he requires a home attendant six hours per day and that such need will continue permanently.

The case settled prior to the Court’s ruling on the motions for summary judgment for $ 7,250,000 plus the waiver of the approximate $ 400,000 Workers Compensation lien.

Commentary: The plaintiff had moved for summary judgment under Sec. 240 of the Labor Law.  The defendant and third-party defendant cross- moved for Summary Judgment, arguing that Sec. 240 should not apply in this situation in which the plaintiff fell from an existing staircase.  The plaintiff argued that the defendants’ position should be rejected in this situation in which the staircase was being used as a work platform for extensive alterations necessary to convert this loft building to residential condominiums.  It should be noted that the Court reserved on the motion and that the case settled before any judicial resolution was rendered.

The plaintiff was able to obtain a substantial recovery in view of the relatively limited claim for future costs of care, contending that he requires a home attendant only six hours per day and the limited cost of renovating his home to accommodate his paraplegia.  It is felt that the combination of the severe and undisputable nature of the paraplegia and the evidence that through extremely hard work in physical therapy, the plaintiff has been able to regain a significant degree of independence and can even drive, would have placed him in a favorably stoic posture before the jury.  In this regard, the plaintiff would have also stressed that notwithstanding his determination, the reality of the plaintiff’s life is that he will be permanently unable to walk, will experience sexual dysfunction as well as bowel and bladder difficulties throughout the remainder of a lengthy life expectancy and that such factors would clearly warrant significant compensation.