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U. S.D.C. - Western District of New York

This was an action involving a plaintiff, in his mid-40s at the time of the ________ incident, who was engaged in the painting of the entire interior of a chemical tank. The plaintiff contended that he was not provided adequate fall protection in violation of the labor law. The plaintiff, who dropped the end of a tool while painting from a 24 foot scaffold, climbed down the ladder , retrieved the tool and had climbed approximately a-half of the way back up the ladder when he felt the ladder sway slightly. The plaintiff contended that when the ladder swayed, his hand missed the rung and that he fell approximately 12 feet to the ground. The plaintiff contended that he suffered a closed head injury and TBI and that the damage includes interference with processing speed and executive functioning.

He was left with extensive concentration and memory difficulties as well as anxiety and depression. The plaintiff, who was a union painter, contended that he will permanently be precluded from returning to that employment, and that he will be limited to minimum wage type jobs even after going through vocational training. The plaintiff also contended that he will incur extensive future costs of care, including that for a home health attendant and costs of medication, cognitive therapy and probably hip replacement surgery.

The defendants contended that the plaintiff was engaged in maintenance which was not covered by the Labor Law and moved for summary judgment on this issue. The plaintiff cross-moved arguing that the painting of the interior of entire chemical tanks is specifically covered by sections of ________ and is not uncovered maintenance. The plaintiff also elicited testimony from a defense expert that even slight swaying of a ladder would constitute a violation under a strict reading of the Labor Law. The case resolved while the motions were pending.

The evidence disclosed that the plaintiff was painting the circumference of the interior while standing on a scaffold and that the procedure required that a "spark tester" be used to ascertain if the presence of the scaffold or other interference prevented a sufficiently thick coat to be applied to various areas. The spark tester measures the conduction of electricity though the paint and a worker could thereby ascertain if the coat in a particular area was not sufficiently thick. In order to use the tool appropriately, a sponge is on the end to moisten the wall and thereby promote the conduction of electricity. While the plaintiff was using the spark tester, the sponge fell off the end of the tool and landed on the ground. The plaintiff climbed down the ladder, retrieved the sponge and the incident occurred after he had climbed approximately a-half of the 24 foot ladder.

The plaintiff underwent an MRI shortly after the incident and the testing showed subtle signs of frontal lobe injury, as well as displacement of the optic nerve. The plaintiff underwent a battery of neuropsychological testing four years later and the plaintiff contended that the results reflected deficits involving cognition, information processing, visual perception, verbal fluency and memory and executive functioning. The plaintiff’s neuropsychologist also made clinical diagnoses of depression and anxiety.

The plaintiff subsequently had a diffusion tensor imaging MRI, which the plaintiff contended is particularly sensitive. The MRI showed three punctuate areas of abnormal brain issue in the frontal lobes, and damage to the communication tracks of the brain. The plaintiff would have presented a professor of Neuroanatomy who would have contended that he could correlate the results of the neuropsychological testing with the diffusion imaging MRI. The plaintiff contended that he will permanently suffer extensive difficulties with concentration, memory and executive functioning.

The plaintiff maintained that he currently needs a home health care attendant three hours per day and that his requirements will increase as he ages. The plaintiff contended that by age 55, he will need an attendant four six hours per day and by age 65, he will need an attendant for 12 hours per day. The plaintiff also maintained that he will require extensive medication and cognitive therapy. The plaintiff further contended that because of the tears to the acetabulum, it is likely that he will ultimately require hip replacement surgery.

The plaintiff would have introduced evidence of approximately $________ in future costs of care. The plaintiff also contended that the loss of earnings and benefits will occasion $________ in future losses. The defendants did not produce expert damages testimony and the plaintiff maintained that his claims were unrebutted.The case settled during the pendency of the defendants’ motion for summary judgment, and the plaintiff’s cross-motion for summary judgment on liability for $________.

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