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ARTICLE ID 32673

$________ - FAILURE TO PROVIDE METAL DOCKPLATE FOR REMOVING WINDOWS FROM TRUCK TO LOADING DOCK - FALL DOWN - LUMBAR HERNIATION SUPERIMPOSED ON PREEXISTING SPONDYLOLISTHESIS - SURGICAL HARDWARE INSTALLATION - FAILED LUMBAR FUSION SURGERY - MENISCAL TEAR REQUIRING TWO ARTHROSCOPIC SURGERIES - CHONDROMALACIA PATELLA - PERMANENT DISABILITY FROM WORK.

Middlesex County

In this action, the plaintiff iron worker employed by a window installation subcontractor at a high rise construction project contended that the defendant general contractor negligently failed to provide a metal dock plate to facilitate the removal of windows from the window manufacturer’s truck to the loading dock.

The plaintiff contended that there was an approximate 18-inch gap and that because of the absence of a dock plate, the workers obtained a piece of plywood to bridge the gap. The plaintiff contended that as he was rolling a dolly containing a window across the plywood after having unloaded approximately 3/4 of the truck, the plywood buckled, resulting in his falling forward onto the dock. The male plaintiff, age 40 at the time, contended that he suffered a lumbar herniation superimposed on preexisting condition of spondylolisthesis, that he required a fusion with the installation of surgical hardware instrumentation which failed, and that he will permanently suffer severe pain which prevents him from sitting or standing for more than 20 minutes at a time. The plaintiff maintained, therefore, that for intents and purposes, he will be permanently unemployable. The plaintiff maintained that he also suffered a meniscal tear requiring two arthroscopic surgeries, as well as chondromalacia patella. The plaintiff further contended that the codefendant window manufacturer, which brought the windows from its nearby plant to the work site, had steel dock plates on hand and that it was foreseeable that they would be needed and maintained that the window manufacturer should have supplied the dock plate itself.

The codefendant contended that the responsibility for providing such a dock plate rests with the employer, whose job entailed installing the windows and would have argued that the employers failure to do so and to bring the truck flush to the dock, along with the alleged comparative negligence of the plaintiff, were the sole proximate causes of the incident. The plaintiff contended that debris at the base of the loading dock prevented the truck from backing up completely to the dock. The plaintiff contended that the debris primarily consisted of concrete left by a codefendant subcontractor, who settled for $________.

The plaintiff’s materials expert would have contended that the general contractor, which owed a duty to provide a safe place to work, should have supplied metal dock plates. The plaintiff’s engineer and materials expert would have also contended that the window manufacturer should have provided such a dock plate as well. The manufacturer denied having such a duty. The plaintiff elicited testimony from the driver during discovery that dock plates, which weigh approximately 60 lbs., were available at the shop and the plaintiff argued that since it was foreseeable that it would be required, they should have provided it.

Both defendants denied that the plywood buckled and contended that the cause of the incident was the negligence of the plaintiff, who simply tripped on the plywood. The plaintiff denied that this contention should accepted, arguing that even if the plywood sheet had not buckled, the beveled edges of the metal dock plate would have reduced the risk of such a tripping hazard and that the defendants would nonetheless be liable.

The plaintiff contended that he suffered a herniation at L-4,5 requiring fusion surgery with instrumentation. The plaintiff maintained that the surgery was unsuccessful and that he will permanently suffer extensive lumbar pain and weakness. The evidence disclosed that the plaintiff had a history of spondylolisthesis, had required traction in ________ for approximately one week and underwent an epidural injection three years prior to the subject incident.

The defendants contended that the preexisting congenital condition accounted for any disability. The plaintiff countered that although he had prior difficulties, he had been asymptomatic and had been able to continue working as an iron worker for the three years prior to the accident as well as for some years before, arguing that in view of this factor, the defendants’ position should be rejected.

The plaintiff related that he can no longer sit or stand for more than 20 minutes at a time, arguing that in view of this factor and his limited education, he is clearly permanently unemployable. The defendant maintained that the plaintiff had a spotty work history and that his claims should be rejected. The plaintiff countered that the work history was impacted significantly by fluctuations in job opportunities faced by iron workers.

The case settled prior to trial for $________ with the general contractor paying $________, the co-defendant window manufacturer paying $________ and the concrete company contributing $________.

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