Fall Off Safety Rail
Wingate, Russotti, Shapiro and Halperin LLP attorneys, Kenneth Halperin and another lawyer obtained a settlement at mediation in the amount of $2,750,000.00 for a 50 year old man who was injured in an accident on a construction site.
The accident in question occurred at 189 Schermerhorn Street, Brooklyn, NY. A new building was being constructed at this location. After a lunch break, plaintiff and his co-worker were waiting for the hoist elevator to bring them back to their work area. The hoist elevator was situated on a platform approximately four to five feet above the ground and surrounded by a safety rail. While the plaintiff was waiting for the elevator, he and his co-worker were leaning on the safety rail which suddenly came loose and caused them both to fall to the ground.
WRSH attorney Mitch Kahn was able to establish during depositions that the platform was used for deliveries throughout the day and the various trades at the site were responsible for removing and then securing the safety rails after the delivery. An inspection after this accident revealed that the rail had not been properly reapplied by some unknown contractor. It was further established that there were no inspections done to ensure that when the rail was removed for a delivery that it was properly reattached.
At the conclusion of discovery, plaintiff moved for summary judgment pursuant to Labor Law 240(1) and defendant cross-moved to dismiss arguing that plaintiff was not entitled to the protection of the Labor Law because he was not working at the time of the accident. The Court agreed with us and granted summary judgment.
As a result of the accident, plaintiff sustained herniated discs in both his lumbar and cervical spine. He was required to undergo an interbody fusion at L4-5 and at C4-5 and C5-6. Plaintiff had a long standing history of prior treatment to his lumbar spine. We argued that the accident aggravated a pre-existing condition and was the cause of the surgery. Defendants argued that the cervical spine injury was degenerative.
Shortly after the accident, plaintiff began developing headaches and symptoms of memory loss and vision difficulties. However, plaintiff did not strike his head on the ground and was not immediately diagnosed with a concussion. We obtained an expert to argue that plaintiff may still have sustained cognitive deficits and previously an undiagnosed concussion as a result of the whiplash effect of the fall and the movement of his brain within his skull. Plaintiff was not able to return to work as a result of the accident. Defendant’s experts also argued that this injury was not caused by the accident.