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$3.6 Million Settlement for Worker Who Fell From Unsafe Scaffolding

Court and County

Supreme Court, New York County

Description of Case

Our client was a 29-year-old construction worker, who fell from an exterior scaffold while performing restoration work to the facade of a five-story apartment building in Manhattan. We filed an action against the owner of the building, pursuant to N.Y. Labor Law Section 240(1).

Our claim was that the exterior scaffold was unsafe in that it was not fully planked; in other words, there were gaps between planks through which a worker could fall. Our client was working on the third level of the scaffold, applying an acid spray to remove old paint from the building. At that time, he slipped and fell through the gap, dropped two stories down and landed on top of a sidewalk shed. In addition to the dangerous gap in the scaffold’s platform, our client was also not provided with any personal fall protective devices, such as a harness and lanyard.

Successful Labor Law Section 240(1) Motion

We filed a motion seeking summary judgment on the issue of liability under N.Y. Labor Law Section 240(1). This law exists to provide protection to workers like this client, who are forced to work at dangerous heights without proper fall protection, and it imposes the duty to provide such protection upon the site owner and (if one exists) the general contractor. Here, there was no general contractor, so our lawsuit and motion targeted the owner of the building under renovation. The defense opposed the motion, arguing that factual issues existed about exactly how this unwitnessed accident occurred. Nonetheless, the Court granted our motion, finding the defendant building owner 100% responsible for the accident. As such, the case would have proceeded to a trial on the issue of damages only.

Injuries and Damages

Our client had immediate low back pain following his fall. He was driven from the scene to a hospital near his home, where he was noted to complain of low back pain. Shortly thereafter, he began a course of medical treatment. He was diagnosed, by MRI, with a herniated disc at L5/S1 contacting the thecal sac, and a nerve/EMG study revealed radiculopathy at the same level. These studies helped explain our client’s complaints of radiating low back pain and numbness in his leg.

After a long course of physical therapy and 10 lumbar injections failed to relieve his ongoing back pain, our client underwent a percutaneous discectomy procedure, which also failed to provide lasting relief.  As such, he was recommended for a one-level lumbar spine fusion surgery, which was also performed. Following that surgery, our client’s radiating pain and numbness improved somewhat, but he was still limited by back pain. Our client also suffered a left shoulder injury in this fall, for which he had two arthroscopic surgeries.

Our client never returned to construction work after the injury, and we claimed that our client was totally disabled from future construction work by these injuries. We advanced claims on his behalf for past and future lost earnings, past and future medical expenses, pain and suffering, and loss of enjoyment of life.

The Defense

The defense to this case was vigorous. Multiple defense expert physicians examined our client, his medical records, and films, and argued that his injuries were not as severe as we claimed.  During our negotiations, we illuminated why we believed these defense expert opinions would ultimately fall flat and be outweighed by the contrary opinions of our client’s treating doctors and own experts.

Settlement

Following a private mediation, and while awaiting a trial date from the Court, we were able to reach a $3.6 million settlement for our client.

Handling Attorneys

This matter was handled by firm Partners Stephen J. Murphy and David L. Scher.

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