A 44-year old man was injured while performing renovation work when he was caused to fall from a height. At the time of the accident he was applying masking tape to windows of a residential building in preparation for stripping and relacquering of brass components on the building’s façade. He was performing this work atop a six-foot aluminum rolling scaffold. While he was applying the tape, one of the boards that made up the floor of the scaffold slid backwards causing the worker to fall to the ground and sustain injuries.
The injured worker brought a lawsuit against the owner of the premises for this construction accident. Following discovery phase of litigation, the worker asked the court to find the owner liable for violating construction law applicable in this case. He argued that while working from an elevated height from a scaffold he was not provided safety equipment to prevent the slipping of the scaffold or to prevent his fall. The injured construction worker further stated that the scaffold owned by his employer was improperly secured, causing him to fall. As such he is a person that should be protected under Labor Law § 240 and that owner is strictly liable for his injuries under this statute.
The owner opposed this request, arguing that the worker was engaged in “routine maintenance” work (which is not protected work under Construction Law) and that the worker’s job at the time of the incident did not require specialized equipment and was not related to a larger construction, renovation, or repair project. The owner also argued that falling down six to seven feet is not a significant elevation risk under Labor Law § 240.
The Court granted the injured worker’s request, finding that he was engaged in the covered work of “cleaning” at the time of his accident, because he was engaged in the refinishing of brass metal bands on the façade and not in the maintenance of the brass metal bands at the time of his accident. There was no evidence submitted that the stripping and relacquering of the brass components was something that needed to be performed on a routine basis. In fact, the evidence demonstrated that this was a specialized cleaning work. As the construction worker was performing protected work at the time of his accident, the owner was required to provide him protection from height related risks, which they failed to do in this instance. The owner appealed the Court’s decision and the appellate court affirmed the lower Court’s decision.
This case proceeded to trial and was on the issue of damages that this worker suffered as a result of his accident. Before trial, the two sides engaged in settlement negotiations. The worker submitted evidence that showed that he sustained bulges in his back and neck at T7-8, C4-5 and C5-6 that were confirmed by an MRI and will permanently cause extensive pain and limitations. As a result of these injuries, the worker missed an initial three-month period from work and underwent approximately three years of intermittent physical therapy. The injured worker was then involved in a second fall from a scaffold and maintained that in this second accident he injured the same parts of his body as he injured in the first accident.
Subsequently he had surgery to his back and neck. He stopped working a few months after the second fall and submitted evidence that he was earning approximately $60,000 per year at the time.
The owner argued that any permanent injury and inability to work was related to the second accident only. The worker argued that it was evident that his first accident affected his ability to work, even if the second accident aggravated his injuries. He further argued that the ankle sprain he sustained in the first accident caused difficulty ambulating and extensive pain which required surgery before the second accident occurred. The case finally settled for $2,900,000 before trial.
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