$________ - SECTION ________ LABOR LAW - PLAINTIFF FALLS APPROXIMATELY 10 FEET WHEN WOODEN PLANK BREAKS - PLAINTIFF IMPALED ON FIVE-FOOT REBAR PROTRUDING FROM GROUND - PARAPLEGIA.

Bronx County, New York

This was a Labor Law Section ________ (1) case involving a male construction worker, age 42 at the time and 45 at trial, who contended that he was not appropriately supplied ladders or any p 7 3 fall protection devices while walking across a 2 x 10 wooden plank situated above two temporary foundation walls after having been directed to remove the walls. The plaintiff contended that as he was walking on the plank, it snapped, causing him to fall approximately ten feet, landing feet first and being literally impaled by a five-foot, steel reinforcing rod that had been protruding from the ground. The rebar entered to the side of the rectum and caused severe injury to the spinal cord, leaving the plaintiff an L-2 paraplegic. The court found a violation of Section ________ (1) as a matter of law and also granted the defendant’s motion for indemnification against the third-party defendant employer. The defendant had also contended that the plaintiff had been told to use ladders and not planks to cross this area and that his failure to heed such directives rendered him a recalcitrant employee. The plaintiff countered that the defendant, who has the burden of proof on the issue, did not introduce evidence that the ladders had been put in place, and argued that the defendant had not met its burden on either this issue or on the issue of sufficient specificity of the orders.

The court concurred and at the close of evidence, held that the defense of recalcitrant employee was not available to the defendant.

The evidence disclosed that when the plank broke and the plaintiff fell, he landed on the protruding rebar, which entered his body, reaching as high as the L-2 level and left him a paraplegic. The evidence also disclosed that some three to four feet of the rebar protruded from his body after he was impaled.

The plaintiff remained conscious and since there was no one in the immediate vicinity to help him, he used his own cell phone to call ________. The plaintiff was brought to the hospital and while the plaintiff was under a general anesthetic, the physicians were required to twist the rod out of his body.

The plaintiff was left with no sensation and no motor abilities below the knees and very limited sensation and motor abilities between the knees and groin. The plaintiff maintained that he continues to suffer chronic pain because of pressure sores in the sacral area through which the bar entered, and that such pain will continue permanently. The plaintiff also contended that he has remained determined to relearn to walk, and that he has continued to engage in upper body rehabilitation attempts. The plaintiff’s physicians indicated that although there is no real hope that he can accomplish this goal, it is, from an emotional standpoint, beneficial that he be permitted to make such an attempt. The plaintiff contended, however, that the stress of his rehabilitation is causing bilateral carpal tunnel syndrome that increases his pain.

The plaintiff had separated from his wife sometime before the incident occurred. He has four children. The plaintiff maintained that he attempts to remain as active as possible and drives a specialized van.

The jury awarded $________, including $________ in stipulated past medical bills, $________ for past lost earnings, $________ for past pain and suffering, $________ for future costs of care, $________ for future lost earnings and $________ for future pain and suffering. p 7 3