Kim Townsend Obtains Defense Verdict in Labor Law § 240(1) case in New York County

January 29, 2019

Plaintiff alleged that while in the course of his employment on a construction site in New York County he was struck in the head and face with rebar, causing him to fall and sustain numerous physical injuries. We represented the owner and general contractor on the project. In plaintiff’s hospital chart he is credited as saying he injured himself while trying to lift, push and pull rebar and not after being struck in the head and face, as he alleged at deposition. Plaintiff’s entitlement to a finding that defendants violated Labor Law § 240(1) went to the Appellate Division, First Department. The First Department held that if plaintiff’s version of the accident occurred as alleged, the accident fell within the definition of Labor Law § 240(1). However, because of the discrepancies contained in the hospital records, the defendants were entitled to a jury trial.

At trial, plaintiff’s counsel fought vigorously to keep the hospital records from the jury. Included in plaintiff’s counsel’s argument is that the plaintiff, who spoke Spanish, did not have a translator. However, we successfully argued that plaintiff’s admissions were sufficiently reliable and germane to diagnosis and treatment. Moreover, and to further drive our position home with the jury, we subpoenaed one of the record keepers. This allowed us to introduce an additional prior inconsistent statement into evidence.

As a result of the accident, plaintiff, who was only 36 years-of-age at the time of the alleged accident, underwent five surgeries including two for a right shoulder rotator cuff tear and three hip surgeries. He also alleged neck and back injuries. Prior to trial, plaintiff’s demand was $4.5M. Defendants offered $50,000. At closing, plaintiff’s counsel asked the jury to award his client $5.25M. After less than two hours of deliberations, the jury awarded him $0.