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$3,075,000 Awarded to Laborer Injured by Falling Gravel While Working in a Trench

Supreme Queens

Plaintiff was a 44 year-old union plumber at the time of the incident.

Plaintiff was a plumber working on a project that involved the construction of a new building on the St. John’s University campus in Queens. During the foundation stage of the project, Plaintiff was kneeling in a trench and leveling pipes. At the same time, a large excavator operated by one of the Defendant contractors, was swinging loads of gravel over Plaintiff’s work area in its bucket. Another worker walked in front of the excavator, startling its operator and causing the operator to jerk the excavator’s arm. This caused a load of gravel to fall from the bucket, a distance of 10-15 feet, and land on Plaintiff’s head and shoulders. Plaintiff did not fall to the ground, but turned and ran out from underneath the falling gravel. Plaintiff sued the construction site owner, general contractor, and prime foundation contractor, alleging violations of New York Labor Law Sections 240(1) and 200.

Defendants argued that Labor Law Section 240(1) did not apply to the facts of the accident because the excavator did not fail or malfunction in any way. Defendants further argued that Plaintiff and his company were negligent for positioning Plaintiff underneath the excavator as it was operating.

Plaintiff suffered neck and back injuries. MRI studies revealed herniated discs in both Plaintiff’s cervical and lumbar spine. After physical therapy and a series of injections failed to relieve his symptoms, Plaintiff underwent two spine surgeries. The first consisted of an anterior cervical discectomy with fusion at the C4-C6 levels. The second involved a lumbar discectomy with fusion at the L4-L5 level. Plaintiff continued treating with physical therapy following those spine surgeries. Plaintiff also claimed psychological damages as a result of his injuries and physical limitations. Plaintiff claimed to be totally disabled from employment by his injuries, and brought claims for his pain and suffering, medical expenses and lost earnings and benefits.

Plaintiff was involved in two motor vehicle accidents prior to the subject construction accident in which he injured his neck and back, and underwent a series of physical therapy and injections to his spine. A prior MRI study of Plaintiff’s lumbar spine revealed that Plaintiff had the identical lumbar disc pathology prior to the accident as he did after the accident. The defense therefore argued that Plaintiff’s back injury was unrelated to this construction accident. The defense also argued that Plaintiff required no further medical treatment, and was not actually disabled because he was physically able to perform a variety of similarly-paying alternate jobs.


This case was handled by Stephen J. Murphy, Esq. (lead) and David L. Scher, Esq.

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