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ARTICLE ID 195108

$________ Labor Law Sec ________ (6) – Failure to provide eye protection to construction worker plaintiff who was using a nail gun at a construction site – Ricocheting nail strikes plaintiff undocumented worker in the eye, resulting in blindness – Future enucleation surgery

Suffolk County, NY

This Labor Law Sec. ________ (6) action involved a 24-year-old plaintiff who was an undocumented worker from Honduras.

The plaintiff, who was using a nail gun, contended that he did not see any eye protection at the jobsite, and was not told that goggles were available, which is in violation of Industrial Code 1.8(a).

The principals of the defendant owner and general contractor admitted that they did not see any eye protection at the jobsite. Despite the admissions of the defendant owner and general contractor, the defendants contended that there may have been eye protection at the jobsite, and that Industrial Code 1.8(a) did not apply, because using a nail gun is not an activity that "may endanger the eyes."

The plaintiff’s and defendant’s experts opined that the plaintiff will suffer permanent blindness in the disabled eye, with lifetime medication and future enucleation surgery.

The plaintiff also contended that it is doubtful that he will be able to work in the future, due to an inability to sustain employment given his limited field of vision, his lack of depth perception, and pain caused by physical exertion. Several years after the incident, the plaintiff worked in construction for one week due to financial hardships related to delayed Workers’ Compensation coverage, but could not continue the employment beyond one week due to his physical limitations. The defendants disclosed a surveillance video showing the plaintiff working during that one week, including using a nail gun without eye protection.

The defendant denied that the plaintiff would have used goggles, even if told they were available, and intended to introduce the post-accident surveillance video in support of this argument. The defendants further intended to use the video to demonstrate that the plaintiff was able to work post-accident, despite his injuries.

The plaintiff moved in limine to preclude the portion of the video that showed him using a nail gun – post-accident – without eye protection, arguing that those portions of the video were not probative of the plaintiff’s comparative negligence at the time of the incident, and would confuse the jury and unduly prejudice of the plaintiff. In the same motion, the plaintiff also moved for summary judgment of the Labor Law ________(6) claims. The motion was pending at the time of the settlement.The case settled prior to trial for $________.

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