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Attorney(s) for Plaintiff:
Michael C. Conway, Esq.
Harris, Conway, & Donovan, PLLC


Albany County, NY

This action involved a 27-year-old plaintiff operator of a paper rewinding machine. The plaintiff contended that when the employer experienced difficulties with the braking system, it requested that the defendant consultant suggest changes to rectify the difficulties. The plaintiff maintained that the consultant suggested changes in the feeding system that created an additional in-running nip point. The change was made by the plaintiff's co-worker as the consultant looked on, and several hours after he left, the plaintiff's foot and lower leg became drawn into the machine. The consultant had $300,000 in coverage. The plaintiff also maintained that the consultant was the agent of the co-defendant manufacturer of the brake control and that the co-defendant was vicariously liable. The co-defendant had $1,300,000 in primary coverage and an excess policy. There were no product liability claims in this case involving an approximate 50-year-old machine whose manufacturer could not be identified.

The plaintiff contended that upon noticing difficulties, the employer contacted the co-defendant, who in turn contacted the consultant and requested that the consultant visit and, if appropriate, suggest changes. The plaintiff maintained that upon observing the operation, the consultant suggested changes in the feeding of the paper that created an additional in-running nip point. The changes were made by co-workers and the consultant looked on for several hours before leaving. The incident occurred later that day.

The plaintiff contended that the consultant acted in a negligent manner, and that the changes that were suggested by him and implemented by co-workers. The consultant denied that he actually suggested that the changes be implemented, contended that he merely observed and did work such as take measurements and denied that his actions created a legal duty. The plaintiff countered that after co-workers determined that the changes discussed would work, the changes were made in front of the consultant and that the machine continued to run in this manner for several hours while the consultant observed. The plaintiff maintained that it was highly foreseeable that the machine would continue running in this manner after the consultant left and clear that the changes placed the plaintiff in greater danger than was previously the case.

The written agreement between the consultant and the co-defendant reflected that the consultant was an independent contractor and the co-defendant denied that the consultant was its agent. The plaintiff countered that irrespective of the characterization in the agreement, the facts reflected that the co-defendant exercised significant control over the consultant and that the consultant was its agent. The plaintiff pointed out that the agreement between the defendants also provided that the consultant would not promote competitor's products. The plaintiff also argued that the fact that the call from the employer was initially made to the co-defendant, who in turn obtained the consultant, was a further indication of such an agency relationship.

The plaintiff maintained that as he was operating the machine several hours after the consultant left, his foot and lower leg were drawn into the in-running nip point. The evidence disclosed that it took approximately 20 minutes to extricate the leg. The plaintiff contended that he suffered multiple crush injuries, and required numerous surgeries, including the implantation of a number of spinal stimulator devices, an Achilles tendon lengthening procedure, and a number of plastic surgeries. The plaintiff contended that he will suffer very significant pain permanently, has a marked limp, and that he will not be able to return to work. The plaintiff would have introduced evidence of approximately $1.5 million in discounted future wage losses.The defendants had moved for Summary Judgment and the plaintiff also moved for Summary Judgment against both defendants. The court denied the motions. The case settled prior to trial for $1,000,000, including the $300,000 policy of the consultant and $700,000 from the co-defendant.

Plaintiff's engineering expert: Douglas Rowland, PE from Clifton Park, NY.

D'Allaird vs. Markline Sales, Inc., et al. Index no. 9535-08; Judge Eugene O. Devine, 06-26-13.

Attorney for plaintiff: Michael C. Conway of Harris Conway & Donovan, PLLC in Albany, NY.

The consultant denied actually suggesting the changes, and contended that the decisions were made by the employer, denying that he had created a legal duty towards the plaintiff. The plaintiff, in countering this position, would have contended that common sense and logic supported its position that the very presence of the consultant, after it found the need for his services, reflected that he would suggest changes and that since such changes involved creating an additional in-running nip point and placed the plaintiff in greater potential peril, a legal duty was clearly created.

Regarding the case against the co-defendant who denied that the consultant was its agent, and who pointed to its agreement with the consultant that characterized the consultant as an independent contractor, the plaintiff would have stressed that in view of control exercised by the co-defendant, including precluding the consultant from promoting competitor's products, this defendant's position should be rejected. Finally, it is thought to be doubtful that defense arguments regarding duty and the nature of the relationship between the defendants would prompt the jury to deny recovery to a worker who suffered such a traumatic event while on the job.

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