ARTICLE ID 168755
$________ TOTAL - UNSAFE WORKPLACE - ABSENCE OF FALL PROTECTION DEVICES - PLAINTIFF WORKER FALLS FROM SCAFFOLD AS IT IS BEING DISSEMBLED - PARAPLEGIA - LOSS OF BOWEL AND BLADDER CONTROL.
Hudson County, NJ
This action involved a plaintiff masonry laborer in his
late 20s at the time, who was working on the top of a scaffold
that was used for constructing a temporary second story scaffold
of the building under construction. The plaintiff contended that
as the scaffold was being dissembled, he slipped some 15 feet,
suffering lumbar fractures that left him paralyzed below the
waist and incontinent of bowel and bladder.
The plaintiffs OSHA expert contended that the defendant failed
to comply with OSHA regulations mandating the use of fall
protection devices such as a safety lanyard or personal arrest
system. The plaintiffs expert further maintained the workers
were not properly trained in the procedures for dissembling
scaffolds.
The plaintiffs OSHA expert contended that scaffold should be
dissembled from top to bottom, avoiding the risk of collapse that
is present if its dissembled from bottom to top. The plaintiff
would have presented two eyewitnesses who would have indicated
that the bottom area was addressed initially. The defendants
would have produced one eyewitness who would have testified that
the procedure entailed removing the top area first.
The G.C. had obtained a safety consultant that conducted classes
workers were required to attend and whom the plaintiff certified
that the workers, including the plaintiff, had been taught the
proper methods of assembling and dissembling a scaffold. The
plaintiff would have produced a fax from the safety consultant to
the G.C., obtained in discovery, which the plaintiff contended
reflected that such methods were not the subject of the class.
The plaintiff would have maintained that the evidence clearly
reflected that safety concerns were not given proper
consideration.
The plaintiff would have further contended that the defendant
employer had been cited by OSHA three times in the past for fall
protection violations, including the absence of a competent
supervisor who could ensure that the work was being done safely,
and who also had authority to stop the work if it was not. The
plaintiff maintained that the employer had reason to know that it
was a substantial certainty that an employee would suffer death
or a serious injury and the plaintiff contended that under the
Laidlaw case, the employer should not have the benefit of the
workers compensation bar.
The plaintiff also named the individual who owned both the G.C.
corporation and employer corporation as a defendant, contending
that he was extensively involved in the day to day operations and
should be personally liable under participation theory of
liability. The plaintiff maintained that this individual was on
the site on a daily basis, and had, in his capacity of G.C.,
signed a contract with the owner assuming all liability for
subcontractors and responsibility for safety issues on the job.
The employer denied that it had reason to know that such injury
or death was substantially certain, and the Court concurred,
granting the employers motion for Summary Judgment. The
individual defendant denied that the corporate veil should be
pierced. The Court held that in view of evidence of particularly
extensive personal involvement, this defendant had a duty under a
"participation theory of liability."
The plaintiff was rendered paralyzed from the waist down and is
incontinent of bowel and bladder. The evidence disclosed that the
plaintiff had married a relatively short time before the
accident, and that his wife was pregnant at the time of the
accident. The wife since gave birth to a girl. The plaintiff
maintained that he has been deprived of most of the joys of
fatherhood, including attending school functions with his
daughter. The plaintiff would have also argued that the jury
should consider that when the time comes, the plaintiff will be
unable to walk his daughter down the aisle at her wedding.
The plaintiff further contended that he cannot be away from
facilities for more than two to three hours without risking
accidents. The plaintiff contended that he will incur extensive
future costs, including the costs of renovating his home, costs
of medications and therapies and physician visits. The
plaintiffs life care plan would have reflected costs that
exceeded $________.
The plaintiff, who had formerly been a limo driver, also
contended that he is permanently unemployable. The evidence also
reflected that the plaintiff sustained a concussion in the
accident, but that this injury substantially resolved.
The case settled prior to trial for $________. The settlement
included $________ from the G.C. $________ from the safety
consultant, $________ from the employer and $________ from the
individual defendant.
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