On Sept. 23, 2000, the plaintiff, a union mechanic, sustained injuries in a slip-and-fall accident while replacing a rooftop water tank in New York. The plaintiff and his co-workers were using an elevator-service room's roof as a work platform. The plaintiff was standing on the service-room roof, lowering tools to co-workers on the building's main roof. During the course of this activity, he placed one foot on the service-room roof's parapet wall, which was wet as a result of rain. The plaintiff slipped off the wall and fell 12 feet.
The plaintiff brought a Labor Law ?? 240(1) action against the defendant, which had hired his firm to replace the water tank. He moved for summary judgment on liability.
The defendant opposed the motion, arguing that Labor Law ?? 240(1) was inapplicable because the plaintiff was not engaged in construction activity at the time he was injured--he and his co-workers were gathering tools at the end of the workday.
The judge granted summary judgment. The defense appealed, but the appellate division, Second Department, affirmed.
The plaintiff sustained comminuted, intra-articular fractures of his calcanei, which were repaired via open reduction and internal fixation. The plaintiff’s expert radiologist would have contended that he suffers from post-traumatic arthritic changes in both feet.
The plaintiff has not worked since the incident. His expert orthopedist would have testified that he is no longer capable of performing construction work.
The plaintiff’s expert economist estimated that he sustained $298,427 in lost wages and $170,874 in lost benefits. The expert also estimated that the plaintiff will lose an additional $2,773,410 in wages and $1,769,320 in benefits.
The plaintiff’s wife claimed loss of services.
The defense's expert orthopedist would have contended that the plaintiff has recovered well. Its vocational-rehabilitation expert would have contended that the plaintiff is capable of earning $35,000 to $50,000 a year in a non-construction capacity.
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