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Worker Claimed 25 Foot Fall led to Fusion of Spine

VEREDICT: $ 8,900,000


Our client, a 31-year-old construction worker, was working at a site located in Suffolk County. He was asked to disassemble a scaffold. The scaffold’s platform planks collapsed while he was standing on them and he fell a distance of some 25 feet. The plaintiff claimed that he sustained injuries of his back and neck. He sued the premises’ owners, Sentinel Diversified Industries Inc. and Sentinel Strategic Properties Inc.

He alleged that the defendants violated the New York State Labor Law. The defendants impeded the plaintiff’s employer, TJC Development LLC. The direct defendants alleged that TJC Development controlled and directed the plaintiff’s work functions. They sought contractual indemnification. TJC Development defaulted, and the matter proceeded to a trial against the direct defendants.

The plaintiff claimed that he was not provided a harness or any type of device that could have prevented his fall. His counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that the plaintiff was not provided the proper, safe equipment that is a requirement of the statute.

Defense counsel contended that an Occupational Safety and Health Administration investigation did not reveal any safety violations. He claimed that the accident was a result of plaintiff’s failure to exercise due caution.

The plaintiff’s counsel moved for summary judgment of liability, and the motion was granted. The trial addressed damages.


Decreased range of motion; fusion, lumbar: herniated disc at C4-5; herniated disc at L4-5; herniated disc at L5—S1; laminectomy; physical therapy; radiculapathy; trigger point injection
The plaintiff was placed in an ambulance, and he was transported to a hospital. He reported that he was suffering pain that stemmed from his back and neck. A CT scan did not reveal fractures or damage of intervertebral discs. The plaintiff underwent minor treatment, and he was released during the following morning.

The plaintiff claimed that his pain persisted. He initially underwent conservative treatment that included physical therapy and the administration of painkillers and painkilling trigger-point injections. About six months after the accident, he underwent an electromyography and MRI scans, and he contended that the tests’ results revealed herniations of his C4-5, L4-5 and L5-S1 intervertebral discs, with radiculapathy.

In June 2007, he underwent a laminectomy – surgical excision of a vertebra’s posterior arch. In September 2009, he underwent fusion of a portion of his spine’s lumbar region. The plaintiff acknowledged that his radicular pain has resolved, but he claimed that he retains mechanical spinal pain and a residual reduction of his back’s range of motion. He contended that he wears a lumbar corset. He claimed that he previously enjoyed soccer and other sports, but that his injuries prevent his resumption of those activities and any type of work or household chores. He also claimed that he may have to undergo surgery that would address his neck.

The plaintiff, an undocumented worker, initially sought recovery of his past and future lost earnings, but those claims were withdrawn prior to the trial. He sought recovery of his past and future medical expenses and damages for his past and future pain and suffering. His wife sought recovery of damages for her loss of consortium.

efense counsel noted that a day-of-accident CT scan did not reveal damage of any discs, and he contended that the plaintiff’s injuries stemmed from desiccation, degeneration and preexisting conditions that were caused by years of physical labor. He argued that the accident did not cause a significant injury. The parties negotiated a $4.7 million/$1 million high/low agreement.


The jury found that the plaintiffs’ damages totaled $8.9 million. However, the plaintiffs’ recovery was reduced to the high/low agreement’s maximum amount: $4.7 million.