Day Laborer Injured at Construction Site

Wingate, Russotti, Shapiro & Halperin partners Bryce Moses and Mitchell Kahn obtained a $5,750,000 settlement for a 50-year-old day laborer injured at his job site. At the time of his accident, he was taking down a parapet wall on a roof of an apartment building in the Bronx. While he and a co-worker were carrying a 100 lb. coping stone to a scaffold where the debris bin was located, his foot fell in the gap between the roof of the building and the scaffold. In an attempt to keep from falling off of the roof, the plaintiff dropped the stone, and although he prevented his fall from the building, the stone fell onto his right hand, dislocating his distal ulna.

When the plaintiff fell into the subject hole he was able to catch himself before falling through to the floor below. To implicate Labor Law Section 240 (1) WRSH partner Kenneth Halperin was able to establish that, but for his left arm stopping his descent, the plaintiff would have fallen completely through the hole. The defendants argued that this was not possible. Mr. Halperin retained a bio-mechanical engineer who used photographic evidence to establish the exact dimensions of the hole. Then the expert took multiple measurements of the plaintiff’s body. Using these measurements, the expert performed specific calculations, all accepted by the Court, which conclusively established that but for the plaintiff stopping his own descent the hole was of sufficient size that he could have fallen completely through to the level below. As a result, Mr. Halperin was successful and the Court granted plaintiff summary judgment pursuant to Labor Law Section 240 (1).

As a result of the injury to his hand, the plaintiff underwent a surgery called a Darrach procedure during which 2 cm were removed from his ulna to stabilize the wrist. Unfortunately, the surgery failed and the plaintiff was required to undergo an additional six hand and wrist surgeries to stabilize the right wrist and repair a severed extensor tendon in his little finger that prevented him from moving it. When the surgeon determined that the extensor tendon was irreparable, the little finger was amputated. Oscar had limited use of his right hand and had limited grip strength as he could not make a full fist. Additionally, Oscar had arthroscopic surgeries to his right ankle and right hip.

The economic damages were limited as Oscar was a day laborer with an inconsistent work history. Moreover, the pain and suffering attributed to these injuries was limited by previous injuries to his left arm and right shoulder that he suffered in a prior work-related accident.

The day before jury selection, this mater settled for $5,750,000.

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