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ARTICLE ID 194422

$________ POLICY LIMIT PRE-SUIT – DEFENDANT SUBCONTRACTOR HIRED TO PERFORM EXCAVATION WORK ASKS PLAINTIFF DIFFERING SUBCONTRACTOR TO ASSIST AT GROUND LEVEL – DEFENDANT STRIKES TREE WITH BUCKET OF CRANE AND TREE TOPPLES, STRIKING PLAINTIFF IN BACK AND PROPELLING THE PLAINTIFF INTO A SAW, CAUSING HIM TO SUFFER THE TRAUMATIC AMPUTATION OF APPROXIMATELY HALF OF HIS NOSE, FACIAL FRACTURES, AND THE LOSS OF A NUMBER OF TEETH

Morris County, NJ

This action involved a plaintiff construction worker, then in his late 40s, who was assisting the defendant excavating subcontractor at a home construction project. The defendant and plaintiff worked for different employers. The plaintiff was on the ground cutting up trees as the defendant was using a crane to remove branches. The plaintiff contended that the defendant did not have tree expertise, could not readily determine that the tree contained extensive internal rot, and was subject to easily toppling if struck by the crane bucket. The plaintiff also maintained that the defendant negligently failed to avoid striking the tree with the bucket, and contended that when he did so, the tree toppled and struck the plaintiff in the back, as the plaintiff was using an electric saw to cut tree branches. The toppling tree propelled the plaintiff forward into the saw, suffering the fracture of most of his facial bones, as well as the traumatic amputation of approximately one-half of his nose, and a number of teeth. In addition to a number of oral surgeries due to his loss of teeth, the plaintiff underwent five facial surgeries, and ultimately the nose was reconstructed. The plaintiff also maintained that he sustained fractures and disc injuries to the cervical and thoracic areas, requiring three level fusion surgery in both portions of the spine.

The plaintiff contended that the defendant did not possess any arbor related expertise, and maintained that the one who was well-versed in such issues would be able to determine that although the tree appeared sturdy to a lay person, there were signs of extensive internal rot that rendered it much more probable that the tree would break and topple upon an impact. The plaintiff contended that because the defendant did not possess such expertise, he did not use the especially great care that was required, and negligently struck the tree with the bucket, resulting in it breaking and toppling, while striking the plaintiff in the back, resulting in coming in contacting the rapidly spinning blade of the electric saw. The plaintiff was rushed to the hospital and underwent facial surgery, and supported that initial attempts at reconstructing the nose failed, with the plaintiff ultimately undergoing a total of four additional facial surgeries. The evidence revealed that a four phase surgery in which a flap that was created from forehead tissue was successfully performed to reconstruct the nose, and did not suffer long-term breathing difficulties.The plaintiff further required some four oral surgeries, and the evidence disclosed that he was restricted to a liquid diet for a period of time, and has been able to resume eating solid foods. The plaintiff contended that he will permanently exhibit moderate facial scarring, and maintained that despite the three level fusion surgery in both, the cervical and lumbar areas, he will suffer permanent pain and weakness. He supported that although he has returned to work as a crane operator, he engages in lighter duty only.

The plaintiff maintained that he will retire much earlier than planned, and would have made a substantial diminution in earnings claim.The plaintiff anticipated that the total compensation lien would approximate $________. The case settled prior to the institution of suit for the $________ policy limits.

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