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Queens County

This was an FELA action involving a plaintiff gang foreman in the employ of the defendant L.I.R.R. who was assigned to inspect the interior of a transformer at a substation. The plaintiff contended that the defendant railroad negligently failed to provide fall protection equipment or follow OSHA regulations involving color coding to clearly mark physical hazards. The plaintiff maintained that as he stood up from a crouched position after completing an approximate ten minute inspection, he struck his head on an I-beam, lost his balance, and fell to the floor nine feet below. The plaintiff contended that he sustained a burst fracture at L-1 which caused complete paraplegia with incontinence, requiring him to wear diapers 24 hours per day. The plaintiff is widowed and resides at home with his youngest daughter.

The plaintiff, who had been employed by the railroad for 23 years and who had been a gang foreman for 14 years, related that he was ordered to perform the inspection of the transformer, which required him to work in a crouched position for an extended period at the top of the transformer. The top of the transformer stood approximately nine feet above the floor in an enclosed building which was vented by louvers on the sides and an open-to- the-air roof consisting of fencing material and an I-beam to provide support to the fencing. The plaintiff’s safety expert indicated that the I-beam was placed 57 inches above the top of the transformer and that it’s color blended in with the surrounding area, making the I-beam less visible. The expert contended that under OSHA regulations, the defendant should have color coded the physical hazard. This expert further asserted that under OSHA regulations, the defendant should have provided fall protection which would have prevented the nine-foot fall and resulting paraplegia, irrespective of the plaintiff’s striking the I-beam with his head.

The defendant contended that OSHA regulations should apply only in a construction setting and not, as was the case here, in a maintenance setting. The plaintiff countered that OSHA’s definition of construction encompasses demolition, repair and maintenance, including painting and decorating, and that the jury should be instructed as to such OSHA regulations.

The defendant also introduced evidence that the plaintiff had a residual BAC of .05 to .06 after the accident, arguing that he was clearly comparatively negligent for drinking on the job. The plaintiff countered that his BAC level was low and denied that it had any bearing on the happening of the accident. The plaintiff further argued that even if it was accepted that his drinking had contributed to the plaintiff’s striking his head on the eyebeam, the burst fractue which caused the paraplegia occurred as a result of the nine foot fall and that fall protection devices p 7 3 would have prevented this fracture.

Following the accident, the plaintiff underwent fusion surgery entailing the use of rods and hooks which ran from T-9 through L- 3 to prevent further instability. The evidence reflected that the plaintiff is incontinent of bowel and bladder and must wear an adult diaper 24 hours per day. The plaintiff testified that he currently requires a home health aide eight hours per day, and maintained that this need for assistance will gradually increase to 24 hours per day as the plaintiff, who is widowed and lives with his youngest daughter, ages. The plaintiff further maintained that he suffers frequent episodes of neuropathic pain which is caused by spontaneous nerve firings as opposed to the neurological responses from signal from injured tissue to the brain. The plaintiff maintained that such pain does not respond well to analgesic medication and that he will suffer it permanently.

The parties stipulated to $________ in economic losses. The jury, in this bifurcated case, initially found the defendant 80% negligent and the plaintiff 20% comparatively negligent. The plaintiff sucessfully moved to set aside the assessment of comparative negligence. The jury in the damages phase awarded $________ for past pain and suffering and $________ for future pain and suffering, which taken with the stipulated economic losses of $________, yielded a total verdict of $________.

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