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Result: $2.3 Million Jury Verdict for Mason Tender Injured in Fall Into Gap in Floor

The Perecman Firm secured a $2,367,297 jury verdict for a worker who was injured after falling through a gap in the floor.

The Perecman Firm, P.L.L.C. represented a client who sustained aggravation of preexisting condition, degenerative disc condition, exacerbation of, stenosis, spondylosis, herniated disc at C5-6, herniated disc at C6-7, herniated disc at L3-4, herniated disc at L4-5, herniated disc at L5-s1, fusion, cervical, fusion, lumbar, chiropractic, arthritis, lumbar facet injury, hypertrophy, disc protrusion, lumbar, bulging disc, L5-S1, HERNIATED DISC at C3-4, osteophyte, and discectomy.

On Nov. 17, 2004, the plaintiff, a mason tender, was working on a construction / renovation site. The plaintiff arrived to work at approximately 7 a.m. and was asked by the general contractor's foreman to retrieve a light stand from the building's second floor. While walking toward the construction-office door, to access entry to the second floor, the plaintiff fell into a gap in the recently poured concrete ground, which was covered by an opaque plastic sheeting. He claimed injuries to his neck and lower back.

The plaintiff sued the project's concrete subcontractor, as well as the property owner and the project's general contractor. He alleged that the defendants violated the New York State Labor Law.

The plaintiff contended that the concrete subcontractor had poured the new concrete slab the night before and covered the entire area with an opaque plastic sheeting, to aid in the cement's curing process. The sheet concealed an opening that was up to 3.5 feet deep, 4 feet wide and 12 feet long, which was located in front of the office door the plaintiff needed to access to get to the second floor. The plaintiff claimed that at the time of the accident, the lighting conditions were dim and there were no cones, tape or other devices placed around the edge of the opening. He further claimed that he was never given any verbal warnings about the presence of the concealed opening.

The plaintiff's counsel claimed that the incident stemmed from an elevation-related hazard, as defined by Labor Law 240(1), and that the plaintiff was not provided the proper, safe equipment that is a requirement of the statute. He further claimed that the site was not properly safeguarded, as required by Labor Law 241(6), and that the defendants violated the general safety provisions of Labor Law 200. He also presented a common-law negligence claim.

Following discovery, all the defendants moved for summary judgment, seeking dismissal of all causes of action. All of the motions were granted, except the concrete subcontractor’s motion seeking dismissal of the plaintiff's common law negligence claim. The concrete subcontractor also filed cross-claims for contribution against the project’s general contractor, which were converted into a third-party action. The plaintiff appealed, and the First Department affirmed the lower court's ruling. The case proceeded to trial against only the concrete subcontractor on the common law negligence claim.

The concrete subcontractor contended that the plaintiff was the sole proximate cause of the accident. The defendant contended that it did not cover the opening with plastic sheeting, but that if it had, the sheeting would have only been placed a few inches beyond the edge of the pour stop. The concrete subcontractor further argued that all of its activities had been performed in conformance with safe and accepted industry practices.

The defendant also claimed that the project’s general contractor had been given specific instructions at a pre-construction meeting that all workers were to avoid areas where the concrete subcontractor’s activities were being performed, and that it was the general contractor's duty to properly notify workers of the dangerous condition. The concrete subcontractor further argued that the plaintiff was not only aware of the opening, but that there were other routes available to the second floor.

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