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ARTICLE ID 186233

$________ – LABOR LAW SEC. ________ (1) AND ________ (6) – FAILURE TO DE-ENERGIZE ELECTRIC CIRCUITS IN CEILING PRIOR TO CONSTRUCTION – FAILURE TO PROVIDE SCAFFOLD – PLAINTIFF IS SHOCKED WHILE WORKING ON STEP LADDER, AND FALLS 5 FT. WHEN HE INSTINCTIVELY STEPS BACK – L1 BURST FRACTURE – CAUDA EQUINA SYNDROME – CORPECTOMY – FUSION WITH TITANIUM CAGE – NEUROGENIC BLADDER – PARTIAL BOWEL INCONTINENCE.

Kings County, NY

The 35-year-old plaintiff, a shipping clerk who would also do handyman jobs for the employer when asked, was standing towards the top of a step ladder containing three and a-half inch wide steps while engaged in constructing a drop ceiling sometime after an HVAC contractor had done work. The plaintiff contacted a live electric circuit and upon suffering the shock, was pushed back and fell some five feet, landing on his buttocks. The plaintiff contended that the defendants, owner-city, tenant and subtenant, were liable for the failure to de-energize the area under Labor Law Sec. ________ (6) and that under Sec. ________ (1), he should have been provided a scaffold. The defendants named the employer as a third party defendant under a theory of contractual indemnification. The employer had a $________ "eroding" policy in which the costs and fees were deducted from the policy as the litigation continued.

The plaintiff contended that a step ladder was not appropriate for this job and that he should have been provided a scaffold. The plaintiff contended that the steps were too narrow and that the ladder too short to enable him to work in greater safety. The plaintiff maintained that if a scaffold would have been provided, he probably would have had ample room upon contacting the live wire and would not have fallen, suffering the severe injuries. The plaintiff further maintained that the defendants should be liable for the failure to comply with Industrial Code provisions mandating the de-energizing of electrical circuits.

The defendants maintained under the ________ (6) count that the plaintiff was comparatively negligent in failing to use an available electrical tester to ascertain if any live connections were present. The plaintiff countered that the Industrial Code placed such onus on the employer and denied that he was comparatively negligent.

The defendants also maintained that the plaintiff selected the ladder and that this choice was the sole proximate under Sec. ________ (1). The plaintiff could have maintained that the ladder was only device available. The defendant subtenant contended that since it leased only a portion of the premises, it could not be liable under the Labor Law. The subtenant’s motion for summary judgment, as well as the remainder of the parties’ motions, was pending at the time of the settlement.

The plaintiff suffered a burst fracture at L1 and fragments caused injury to the conus medullaris The plaintiff underwent a corpectomy in which the L1 vertebrae was removed and surgery involving a titanium cage in which the levels above and below were fused. The plaintiff maintained that he sustained cauda equina syndrome. The plaintiff contended that he suffered a neurogenic bladder, and that because of the inability to fully void, he must self-catheterize five times per day. The plaintiff maintained that he has suffered urinary tract infections every few months and that it is likely that he will suffer such infections permanently.

The plaintiff also contended that because he is subject to bowel accidents, he generally wears an adult diaper when leaving the home. The plaintiff related that he can at times avoid accidents by timing his meals. The plaintiff maintained that such partial incontinence will remain permanently. The plaintiff further contended that in order to achieve an erection, he must administer an injection into the penis. The plaintiff’s proofs reflected that he nonetheless has significant difficulties functioning. The plaintiff contended that although he can currently walk, it is likely that his condition will deteriorate in the future and that he may well require devices such as a motorized scooter, and assistance from an aide.

The plaintiff is unmarried and has no children. He resides with his girlfriend. The plaintiff was earning approximately $________ per year and did not receive benefits.The case settled several weeks following an eight hour mediation and after a three hour pretrial conference for $________. The city owner contributed $________. The employer (contractual indemnification) contributed the $________ remaining of its $________ eroding policy, the tenant paid $________ and the subtenant $________. The mediator was Alan Hurken-Torres (JAMS) and the settlement conference was held before Judge Kenneth Sherman.

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