Frank J. Lombardo, partner with Wingate, Russotti, Shapiro & Halperin, LLP, settled this matter prior to trial after handling discovery and significant motion practice. A 35-year-old non-union plumbing laborer was walking from the worksite to his work truck to obtain tools and materials when he was knocked to the ground by an 8-foot section of chain link fencing weighing approximately 80 pounds that was not secured by the general contractor. The NY Supreme Court dismissed the plaintiff’s Labor Law §240(1) cause of action. When the case settled, it was pending in the appellate division on the issue of whether the fence was deemed a falling object that was not secured.

We alleged that the plaintiff sustained a lateral meniscal tear and partial tear of the anterior cruciate ligament, whereby he underwent arthroscopic partial lateral meniscectomy. As a result of his altered gait, the plaintiff developed lower back pain. He was diagnosed with a bulging disc at L4-5 with thecal sac impingement upon the exiting L4 root, and right paracentral herniation at L5-S1 with impression upon the thecal sac and right S1 root. The plaintiff underwent a decompressive lumbar laminectomy and partial discectomy.

In addition to contending that the falling fence was not subject to Labor Law §240(1), the defendants contended that the plaintiff did not sustain tears of the lateral meniscus or anterior cruciate (as confirmed by the operative report) and that his lumbar injury was a result of a preexisting degenerative condition, for which the plaintiff was treated one month prior to the date of the accident. The defendants also intended to introduce photographs taken from the plaintiff’s girlfriend’s social media pages showing the plaintiff to be active, not exhibiting any pain or suffering of loss of enjoyment.

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