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ARTICLE ID 161561

$________ Construction site negligence - Negligent use of backhoe instead of crane to lower rebar - Backhoe operator's left arm injured - Lateral epicondylitis.

Cook County, Illinois

The plaintiff in this workplace negligence case claimed the use of a backhoe in moving large mats of rebar presented an unnecessary danger and caused him to become injured at the Riverwalk Condominiums construction site in Lyons. The plaintiff alleged he sustained left elbow lateral epicondylitis after a backhoe operator either oscillated or struck the mat load on the walls of an excavation he was partially standing in, which caused the mat to jerk his left arm. The plaintiff’s case centered on the plaintiff’s allegation, that a crane should have been employed to lower the mats of rebar. The defendant, a sub- contracted trucking and excavating company, contended its backhoe operator did nothing wrong, that the load was never jerked and that the plaintiff was injured either as a result of the normal course of his work or from a separate occurrence.

The incident occurred on December 12, ________ as the plaintiff, a 52-year-old male iron worker employed by an additionally sub- contracted concrete construction company, stood partially in the excavated hole with his left hand on the mat as the backhoe lowered it into the hole. The mats weighed more than ________ pounds, and the wooden forms contained in the mats provided only one or two inches of tolerance on the sides of the mats, according to the plaintiff. Therefore, when the ________ pound mats were lowered into place they had to be carefully guided by the plaintiff and his co-worker.

During the incident in question in this case, the plaintiff alleged that as the rebar mat was being lowered, the load pulled on his left arm after the backhoe operator either jolted the load or struck it on the dirt walls of the excavation. The plaintiff contended a crane should have been employed for the lowering of the mat, as the use of the back hoe made the load extremely difficult to control. He claimed the use of the backhoe created an unsafe situation due to zero slack in the rigging and minimal allowance for error. Whereas, he claimed, the use of a crane would have provided 30 feet of crane line to adequately control the load.

It was undisputed that there was no crane on the job site and that the plaintiff’s foreman spoke with the backhoe operator for the defendant regarding his assistance in moving the mats by way of the defendant owned back hoe. The plaintiff testified that he complained to his foreman, insisting that the backhoe was not the appropriate piece of equipment. He claimed he was told by the foreman that the backhoe was all that was available to lower the rebar and that the work would, in fact, proceed with the backhoe.

The defendant admitted the injury occurred but argued it was sustained during the normal course of the heavy work performed by the plaintiff. The defendant additionally alleged contributory negligence in that while the plaintiff expressed concern about the use of the backhoe, he assisted in the use of the backhoe anyway. The defendant’s expert witness testified that the backhoe was in fact an appropriate piece of equipment and that the plaintiff endangered himself by both holding the piece incorrectly and by standing in a dangerous pinch point. The plaintiff answered this testimony by arguing the pinch point was not what injured him, but rather the use of the backhoe, which left no slack in the rigging while the plaintiff guided the load.

The defendant additionally claimed the plaintiff’s injuries had fully resolved, that his treatment was excessive and that he was capable of returning to all aspects of full-time ironworking. The plaintiff claimed he sustained left elbow lateral epicondylitis for which he underwent therapy, rehabilitation, and work hardening, which he contended caused medial epicondylitis to his right elbow. The plaintiff claimed he continued to experience pain, suffering and disability with both his left and right upper extremities, which impacted his work and non-work life. He claimed $________ in medical costs and $________ in lost income.

The defendant met the plaintiff’s last demand of $________ with an offer of $________ and the case continued to trial with $________ asked of the jury. This case was tried only against the defendant subcontracted excavation company after being litigated against a number of parties, including the general contractor. The jury found the defendant negligent and awarded damages in the amount of $________ reduced 33.3 percent for the plaintiff’s contributory negligence. In pre-trial settlement discussions, the plaintiff’s employer waived its worker’s compensation lien, which gave the defendant a set off of $________ from the verdict in addition to a set off of $________ for a settlement with the general contractor.

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