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$________ Plaintiff injured while installing floor at jobsite - Contractor requested that plaintiff use inappropriate and unsafe cleats to do work - Twisted back and herniated disc.

Erie County

On June 20, ________, the 50-year-old male plaintiff, a cement mason, was working at the American Axle & Manufacturing plant in Buffalo that was being enlarged. The general contractor had hired the plaintiff’s employer as a subcontractor to install epoxy floors. The contractor told the plaintiff to attach two-inch spiked cleats to his shoes with duct tape. While the plaintiff was in the process of broadcasting the epoxy and while carrying a 30-40- pound bag of sand to be spread, the plaintiff slipped, the duct tape loosened, and he twisted his back resulting in a herniated disc. The plaintiff, a member of the cement mason’s union, sued the contractor and alleged that the use of the cleats with duct tape was unsafe and not in accordance with the industry’s standards for safety. The defendant argued that the cleats were used in the trade and met the standard for safety in the trade. The defendant further argued that the plaintiff had not been injured in the manner he had alleged.

The plaintiff sought compensation for pain and suffering and for lost wages alleging that he could no longer be a cement mason. He maintained that the average cement mason earns $________ annually, but that now he is only earning $________ annually.

The plaintiff’s safety engineer opined that the cleats and duct tape were dangerous and improper. The defendant’s safety engineer was an expert in skid resistant floors and metallurgy, but not in the use of cleats for the type of surface on which the plaintiff was working.

The parties agreed that the facts of the case did not fall within the Labor Law.

The plaintiff’s treating orthopedist testified that an MRI documented the plaintiff’s claim of a herniated disc. The defendant’s expert orthopedist opined that the injury was not as severe as the plaintiff claimed.

Two witnesses testified that the plaintiff had told them about the incident within one day of the incident.

The jury returned a verdict for the plaintiff and awarded him $________.

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