On Feb. 24, 2007, plaintiff, 53, a mason, climbed on the exterior cross-braces of a scaffold to access a temporary platform erected in between the permanent levels of a scaffold in Public School 89, in the Allerton section of the Bronx. Plaintiff slipped and fell some 12 feet to the scaffold floor below, and he sustained injuries to his torso, knee and shoulder.
Plaintiff sued the site's owner, the site's operator, and the project's general contractor. He alleged that the defendants violated the New York State Labor Law.
Plaintiff claimed that he climbed on the scaffold because there was no other way to access the temporary platform. Two co-workers claimed that the crew had been typically using the exterior of the scaffold to access the temporary platform.
Plaintiff's counsel contended that the defendants violated New York Codes, Rules, and Regulations, title 23, parts 1.7(f) and 23-5.3(f), which specify that ladders, stairs or ramps must be provided for access and egress to scaffolds higher than 2 feet above the ground. Plaintiff's counsel claimed that the violations established that the site was not properly safeguarded, as required by Labor Law 241(6). They also claimed that the incident stemmed from an elevation-related hazard, as defined by Labor Law 240(1), and that plaintiff was not provided the proper, safe equipment that is a requirement of the statute.
The defendants contended that ladders were available for plaintiff to use. They claimed the plaintiff and the rest of the crew had been instructed during safety meetings to use ladders to access temporary platforms and not climb on the cross braces, as documented in their safety meetings reports. Plaintiff’s supervisors confirmed that the crew had been instructed to use ladders.
Plaintiff sustained fractures of his sixth, seventh, eighth and ninth ribs; a tear of the posterior horn of his left knee's medial meniscus; a right shoulder dislocation; a right bicep tendon tear; and a tear of the right rotator cuff, including tears of the supraspinatus, infraspinatus and teres minor.
Plaintiff was taken to Jacobi Medical Center after the accident and treated to reduce the shoulder dislocation.
In June 2007, plaintiff underwent open reduction, internal fixation surgery for the right shoulder that included the installation of an anchor. He underwent arthroscopic surgery on his knee to remove the torn portion of the posterior horn of the medial meniscus in June 2008. He treated with physical therapy some three times a week for more than a year after the accident.
Plaintiff claimed that he was unable to raise his dominant right arm more than 60 degrees above his waist, and as a result he was unable to return to work. He sought recovery of pain and suffering, as well as medical expenses and lost earnings. Plaintiff asked the jury to award between $4 million and $7 million.
Defense counsel argued that plaintiff’s knee injury was pre-existing, as he had received medical treatment for his left knee some six months before the fall. Defense counsel also argued that he had made a full recovery from the shoulder injury. The defense's orthopedic expert testified that two years after the incident plaintiff had recovered full 180-degree movement of his arm.
The trial lasted four weeks and the jury deliberated for one day before awarding a jury verdict of $2,871,200.
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