Jerome Smith v. 333 Loft Associates

Jerome Smith v. 333 Loft Associates

HERNIATED LUMBAR DISC

painter

Manhattan, NY

Pltf.’s verdict on liability (5/1). Post-trial motions were denied. Case subsequently settled during the damages trial for $575,000.

$575,000.00

XIII/43-8 LABOR LAW LADDER COLLAPSE HERNIATED LUMBAR DISC

Jerome Smith v. 333 Loft Associates 28822/91 4-day trial Verdict 3/25/96 Judge Leonard E. Yoswein, Kings Supreme

VERDICT: Pltf.’s verdict on liability (5/1). Post-trial motions were denied. Case subsequently settled during the damages trial for $575, 000. Jury: 2 male, 4 female.

Pltf. Atty: Albert Khafif of Rubenstein, Flatow & Rynecki, Brooklyn

Deft. Atty: William M. Boyle of Moore & Lafferty, Brooklyn

Facts: Pltf., a 52-year-old “off-the-books” painter, claimed that he was injured on 8/21/90 when he fell from a 6-foot-high ladder while painting a ceiling at 333 West 39th St. in Manhattan. Pltf. testified that the ladder did not have safety feet and there was no one with him to hold the ladder in place. Pltf. claimed that he was holding on to a water pipe to reach a portion of the ceiling when the ladder fell over. Pltf. contended that he was left hanging onto the pipe until he lost his grip and fell to the floor, landing on his heels. There were no witnesses to the accident. Pltf. contended that Deft. violated Labor Law ? 240(1) by failing to provide a safe workplace.

Deft. contended that the accident never happened, and claimed that Pltf.’s employer, who had died before the trial, had stated to Deft. that Pltf. was not working on a ladder on the day of the accident. Deft. also noted that Pltf. did not introduce any evidence indicating that the equipment was defective, and further noted that the equipment was supplied by Pltf.’s deceased employer.

Injuries: (settled for $575,000 during the damages trial) herniated disc at L5-S1 with sequestered fragments, requiring a laminotomy. Deft. would have argued that Pltf. suffered from pre-existing degenerative disc disease. Pltf.’s neurologist would have testified that although Pltf. had degenerative disc disease, the nerves in the affected area showed evidence of edema, indicating a fresh injury. Demonstrative evidence: charts of vocational rehabilitation testing; medical records; model of the spine; map of nerves in the area of the injury. Jury deliberation: 4 hours. Carrier: Aetna. Pltf. Experts: Dr. Irving Friedman, neurologist, Bronx; Edmond Provder, vocational rehabilitation, Manhattan; Dr. Fred Scialabba, neurosurgeon, Glens Falls; Dr. Edmond Mantell, Ph.D., economist, Scarsdale . Deft. Experts: Dr. Steven Gilbert, neurologist, Brooklyn; Dr. Bruce Zablow, neuroradiologist, Manhattan; Dr. Fred Goldman, Ph.D., economist, Manhattan; Dr. Joel Teicher, orth. surg., Brooklyn.