The Perecman Firm, secured a $6 million mediated settlement for a union laborer who was injured in a trench collapse.
The Perecman Firm, Attorneys David H. Perecman and Mariusz J. Sniarowski obtained a $6 million settlement at mediation for a construction worker who suffered multiple injuries in a trench collapse.
The plaintiff was a 39-year-old union-affiliated laborer who was performing work at an excavation site near an intersection in Brooklyn. While working in a trench where a water main was being installed, the trench collapsed, causing the plaintiff to suffer injuries to his back, knee, leg, and neck.
Injuries & Treatment
After being transported to a local hospital by ambulance, x-rays indicated that the plaintiff suffered fractures of the left knee and fibula. The plaintiff additionally claimed that he suffered tears of the lateral and medial menisci in his left knee, protrusion of his L5-S1 disc, and bulges of multiple discs in his neck and lower back. It was claimed that he developed arthrofibrosis and chondromalacia in his knee, residual impingement and radiculopathy of a spinal nerve, and reflex sympathetic dystrophy in his legs.
The plaintiff was treated surgically with open reduction and internal fixation of his leg fracture and underwent a total of three arthroscopic surgeries for his left knee. He also received two nerve-block injections in his lumbar spine, trigger point and painkilling injections in his sacroiliac joint, and received physical therapy for over four years.
The plaintiff claimed that he was unable to perform physical labor due to constant residual pain and limitations resulting from his injuries, and that the worsening prognosis of his condition would eventually require him to hire an aide or housekeeper.
Claims
A lawsuit was filed against the roadway owner, the project’s manager, and a contractor which supervised the work. It alleged that the defendants negligently failed to provide a safe workplace in violation of New York Labor Law. The roadway owner and project manager impleaded the plaintiff’s employer, alleging that it controlled and directed the plaintiff’s work duties.
Plaintiff’s counsel claimed that the defendants failed to take measures to prevent a trench collapse, citing witnesses who testified that several inches of water had accumulated in the trench. Counsel further claimed that the soil composition was non-homogenous and therefore more likely to collapse. Several violations were alleged, including violations of New York Codes, Rules, and Regulations:
- Title 23, part 4.2(a), which requires adequate shoring of trenches of 3 or more feet if excavated in non-homogenous soil, or of any trench greater than 5 feet. Engineering plans indicated the trench’s depth was to exceed 5 feet.
- Title 23, part 4.1(b), which prohibits a worker’s use of a trench without proper protective systems to prevent a collapse.
It was further alleged that the violations constituted a failure to provide or ensure reasonable and adequate protection as required by Labor Law § 241(6).
Result
In addition to reimbursement of a $400,500 workers’ compensation lien, the suit sought damages for future medical expenses, past and future lost earnings and benefits, pain and suffering, and a derivative claim brought by the plaintiff’s wife.
Raising several arguments with supporting medical expert reports, the defense contended that the plaintiff’s disc injuries were degenerative and did not result from his accident, that he did not exhibit evidence of reflex sympathetic dystrophy, and that he would be able to perform sedentary work before returning to more physically demanding work at a later time. The defense also argued that the trench did not reach five feet in depth and that the soil composition was homogenous.
Ultimately, The Perecman Firm, was able to negotiate a mediated settlement in which the plaintiff’s employer tendered the limits of its $2 million policy and an additional $2.5 million from an excess insurer. An additional $1.5 million was recovered from the supervising contractor, bringing the total settlement to $6 million. This included a $100,000 allocation for the plaintiff’s wife and a waiver of the workers’ compensation lien.