Construction Injury Verdict Aided By Creative Trial Strategy

A lawsuit arising out of a construction site injury recently resulted in a jury verdict of over $4 million in personal injury damages to a Queens plaintiff and his wife. An electrician fell 20 feet from a ladder and sustained injuries after he received an electrical shock while working on exterior light fixtures at an apartment complex in the Bronx. The plaintiff alleged that violations of Section 240 of the New York State Labor Law had contributed to his injuries.

One threshold issue was whether the cited statute was actually relevant to the case. Plaintiff argued that he was not provided with equipment required under the statute for elevation-related hazards. The defense argued that plaintiff's work was merely "routine maintenance" and was not covered by the law; they argued his work was the equivalent of simply changing a light bulb. In response, plaintiff's counsel, Mitchell J. Sassower of Arye, Lustig & Sassower, P.C., explained that his client's involvement was much more extensive, including wiring and part replacement, and the court agreed. The court decided that the plaintiff's work constituted "repair" which was covered by the statute and that the defendants had violated Labor Law Section 240 as a matter of law which was upheld on appeal. See, Caban v. Maria Estela Houses I Associates, L.P., 63 A.D. 3d 639 (1st Dept. 2009).

Trial Strategy And Settlement

Another noteworthy aspect of the case was the trial strategy of D. Carl Lustig III, who tried the case for the plaintiff and his wife, to make pre-emptive use of video surveillance — obtained by the defendant insurance company — of the plaintiff walking without a cane, which may have otherwise harmed the client's case. Lustig offered the video into evidence himself, played it for the jury, and questioned the plaintiff's orthopedic surgeon about the fact that plaintiff was not using a cane. The surgeon attested to the severity of the ankle fracture and resulting arthritis, and that the content of the video was in no way inconsistent with his medical opinion. Thus, the anticipated surprise impact of the defense evidence was defused.

Under the terms of a high-low settlement agreement that was negotiated while the jury was deliberating, the parties agreed that the plaintiff and his wife would receive a minimum award of $1.5 million and a maximum award of $3.25 million. The verdict in excess of $4 million translated into a settlement for $3.25 million, with the advantage to the plaintiff that the award could not be challenged by any motions or appeals — yet another example of creative strategy by Arye, Lustig & Sassower, P.C.

Experienced Protection Of The Interests Of Personal Injury Clients

Like all accident injury cases, construction injury claims involve a complex web of facts, legal statutes and case law. When an injury victim must go to trial to assert his or her full demand for compensation, an adept trial strategy and the insights that come with experience can be among the foremost assets. For families affected by a serious worksite injury, a consultation with a seasoned litigator can be an important first step to understanding the full extent of the harm caused.