Worker Fell Approximately Eight Feet
WRSH Partner, Kenneth J. Halperin recently obtained a $2 million settlement for a laborer who fell approximately eight (8) feet through a hole in the floor at his worksite. The accident occurred when our client was in the process of cleaning debris off the floor of a building that was under construction. While he was moving debris from the middle of the floor to the side he suddenly fell through a hole that had been cut out for HVAC duct work. Unbeknownst to the plaintiff the cover had been removed and he did not observe that there was an uncovered opening. The failure to properly cover the hole was a violation of Sections 240(1) and 241(6) of the Labor Law.
The accident was unwitnessed and the hole through which he fell was very small (approximately 18in x 28in). Due to the small size the defendants' site safety officer and safety manager both speculated that plaintiff could not have fallen through the hole. They contended that he fell when trying to lower himself through the hole to access a ladder on the floor below. They argued that this provided quicker access for him to get to the floor below. Plaintiff, of course, denied doing that.
During the course of discovery we conducted a deposition of the site safety officer who after the accident prepared an accident report in which he wrote that the plaintiff had admitted to him that he was lowering himself through the hole to access the ladder. We were able to severely impair his credibility when we got him to admit that the plaintiff never told him this and that what he wrote in the report was a mistake.
Additionally, we hired a forensic engineer to prove that based upon plaintiff's physical attributes it was a mathematical and physical certainty that a fall through a hole even of this small a size was possible. We also hired a biomedical/mechanical engineer who determined that plaintiff's injuries, especially the bruising to the underside of each bicep which we had photographs of, was consistent with a fall through a hole.
As a result of the accident, the plaintiff sustained a herniated disc in his lumbar spine which required a diskectomy followed by a one level fusion approximately one year later. We argued that the plaintiff was unable to return to work in construction, although he had been cleared to perform work in some other profession that did not involve physical labor. As such, we made a loss of earnings claim for the difference in salary between the work he was doing before the accident and what he was capable of doing after the accident.