Thorsten Gigger v. Sidney Fein, Evelyne Jeanniton, Ajay General Contracting, K.B.M. Design; R&D Home Improvement, and Superior Aluminum Products

Thorsten Gigger v. Sidney Fein, Evelyne Jeanniton, Ajay General Contracting, K.B.M. Design; R&D Home Improvement, and Superior Aluminum Products

PARAPLEGIA

self-employed excavator

Suffolk, NY

This action settled for $3,050,000 during trial.

$3,050,000.00

XVI/27-48 LABOR LAW PORTICO FALLS ON EXCAVATOR FAILURE TO PROVIDE SAFETY EQUIPMENT PARAPLEGIA

SETTLEMENT: Thorsten Gigger v. Sidney Fein, Evelyne Jeanniton, Ajay General Contracting, K.B.M. Design; R&D Home Improvement, and Superior Aluminum Products 4209/95 Dates of Settlement 9/24/98, 10/27/98 Suffolk Supreme

Pltf. Atty: Gerald Lotto, Bohemia

Michael S. Levine of Gandin, Schotsky, Rappaport, Glass & Greene, Melville

This action settled for $3,050,000 during trial. Pltf., a 31-year- old self-employed excavator, claimed that he was injured on 1/25/95 at 12 PM while performing excavation work on a multi-family dwelling located at 28-05 Bell Blvd. in Bayside. It was owned by Defts. Fein and Jeanniton. Deft. Ajay was the general contractor, and it hired Deft. K.B.M. to excavate a new driveway and parking area on the south side of the building and remove the stoop at the south entrance. Deft. K.B.M. subcontracted Pltf. to remove with his backhoe the existing dirt in the area where the driveway and parking lot were to be located.

Pltf. claimed that an employee of K.B.M. asked him to check two columns on the stoop, which were supporting a portico, to determine if they were weight bearing. He contended that he grabbed one column with both hands and moved it in a spinning fashion and kicked it one to three times with the inside of his foot. The column then moved without warning, and the portico fell onto Pltf. Pltf. claimed that Defts. Fein, Jeanniton, Ajay, and K.B.M. failed to provide him with adequate safety devices as required by Labor Law ?240(1). Pltf. also argued that Deft. R&D Home Improvements negligently installed the columns because they were not affixed to the roof or stoop. Pltf. also contended that Deft. Superior Aluminum provided negligent instructions for the installation of the columns, which did not require that they be secured in place with “L” brackets.

Defts. Fein, Jeanniton, Ajay, and K.B.M. contended that Labor Law ? 240(1) did not apply. Deft. R&D argued that it properly installed the columns and that it followed the manufacturer’s instructions when installing them. Deft. Superior contended that its instructions were adequate and that the accident was caused by Pltf.’s own negligence.

Injuries: paraplegia; incontinence; impotence. Demonstrative evidence: model of construction site; photos of site; MRIs; illustrations of spine. Specials: $150,000 for medical expenses. No offer; demand: $3, 000,000 from Fein, Jeanniton, Ajay, K.B.M., and R&D; $1,500,000 from Superior. Carriers: Nationwide for R&D; Maryland Commercial for K.B.M.; Transtate for Fein and Jeanniton; Continental for Ajay Contracting. Settlement apportionment: $450,000 paid by Fein and Jeanniton; $450,000 paid by Ajay Construction; $800,000 paid by K.B.M.; $600,000 paid by R&D Home; $750,000 paid by Superior. Note: Defts. Fein, Jeanniton, Ajay, K.B. M., and R&D settled on 9/24/98; Deft. Superior settled on 10/27/98 during deliberations.

Pltf. Experts: Dr. Thomas Mauri, orth. surg., Great Neck; Dr. Barry Root, physical and rehabilitative medicine, Glen Cove; Dr. Alan Mechanic, neurologist, Garden City; Dr. Edmond Provder, vocational rehabilitation, Manhattan; Alan Leiken, Ph.D., economist, East Setauket; Jerome Connor, Sc.D., engineer, Cambridge, Massachusetts; Jean Miele, architect, Middle Village.

Deft. Experts: Robert Ratay, Ph.D., civil engineer, Brooklyn; James Maloney, engineer, Mineola; Morris Ehrenreich, Ph.D., vocational rehabilitation, Westbury.