Successful Recovery for Road Worker Struck by Passing Vehicle
On March 11, 2004, two construction workers were struck by a vehicle while they were crossing or had just crossed Route 9W in Marlborough. They were crossing the street from a parking lot to their construction site. Eyewitness accounts of the accident varied with some placing the first worker in the middle of the road while others said he was on the shoulder of the road. Eyewitnesses did agree that the second construction worker was in the roadway.
One eyewitness stated that both workers ran across the road, while another stated they crossed the road with their heads down. Forensic evidence showed that the second worker was struck first and they were separated by approximately 40 feet at the time of the impacts.
The guardian for property management and personal needs of the worker sued the town of Marlborough and the driver of the vehicle that struck them.
In a separate action, family of the second worker sued the driver and the town of Marlborough. The cases were consolidated and the town of Marlborough impleaded the plaintiffs' employer as a third-party defendant.
The plaintiffs alleged that the driver was negligent in the operation of his vehicle and that the town had violated Labor Law 200 and 241(6). The plaintiff’s employer had been hired by the town of Marlborough to reconstruct approximately 1,100 linear feet of the sidewalk and curb.
Plaintiffs' counsel argued that the town and the contractor failed to properly protect the workers and job site. Plaintiffs' counsel contended that at most there were only cones near the curb at the accident scene rather than drums, fencing, barricades and jersey barriers. Plaintiffs' counsel argued that the construction site work permit required that the shoulder be closed.
Plaintiffs' counsel stated that the driver admitted that he was using his only functional arm to move his sun visor and was steering and holding the steering wheel with only his knees. He admitted striking the second worker but said he did so while he was in his lane of traffic, plaintiffs' counsel stated. He later admitted after repeated questions that he then pulled off onto the shoulder but denied striking anyone else, plaintiffs' counsel stated. Plaintiffs' counsel argued that forensic evidence showed that the first construction worker was at the shoulder of the road at the time of the accident.
The driver’s counsel argued that the driver was not negligent in the operation of his vehicle.
Defense counsel for the town of Marlborough and for the employer argued that the accident was the fault of the inattentive workers who crossed into traffic and of the driver who steered with his knees. They also argued that the construction work was rebuilding the sidewalk and thus cones along the shoulder were satisfactory.
The first construction worker tore all of the ligaments in his right knee, including his anterior cruciate ligament, posterior cruciate ligament, medial collateral and lateral collateral. He underwent open reconstruction surgery and later a surgery to remove the heterotopic bone. He also sustained an avulsion fracture to his left fibula, which required open surgery to repair.
He suffered subdural bleeds and frontal lobe hygromas, chronic hematomas and atrophy. He underwent speech, physical and occupational therapy. At the time of trial, he walked with a cane and a limp. His brain injury resulted in cognitive impairments and memory loss. He underwent behavioral and personality changes, including problems with impulse control and an inability to refrain from inappropriate behavior and speech. He can no longer work as he cannot attend to a task for long and he has inadequate control of his emotions.
The second worker sustained multiple fractures in his pelvis, hip and skull. He had to undergo surgery to repair his pelvis in addition to brain surgery. He also developed traumatic diabetes. He continues to experience pain and his injuries had left him permanently disabled. He can no longer work. He received treatment at the Westchester County Medical Center and an affiliated nursing home from the time of the accident until June 2004.
Defense counsel for the employer argued that the plaintiffs did not sustain a grave injury, according to counsel for the second worker.
A family member of the second construction worker initially was named as a plaintiff but she was out of the case prior to trial.
After 18 days of trial, our client was awarded $6,075,000.
The first worker recovered $4,525,000, plus a waiver of a $400,000 lien.
The second worker recovered $1,550,000, plus a waiver of a $400,000 lien. The driver contributed $25,000, the employer contributed $1,500,000 and the town of Marlborough contributed $25,000.