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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 plaintiff’s 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 plaintiff’s expert further maintained the workers were not properly trained in the procedures for dissembling scaffolds.

The plaintiff’s OSHA expert contended that scaffold should be dissembled from top to bottom, avoiding the risk of collapse that is present if it’s 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 worker’s 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 employer’s 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 plaintiff’s 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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