Following a two week trial, GVK Partner, Patrick J. Cooney, obtained a defense verdict in Supreme Court, Queens County before the Hon. Darrell Gavrin on behalf of our client Con Ed, the sole defendant. The accident occurred when the 40,000 pound excavator plaintiff was operating, slid into a creek and began to sink before plaintiff could escape. Plaintiff alleged lumbar and cervical herniations, as well severe PTSD because of the the incident.
Plaintiff brought a NY State Labor Law action against Con Ed, alleging a failure to provide a safe place to work and failing to supervise the means and methods of plaintiff’s work. Specific Code sections under LL241(6), the Industrial Code, were submitted to the jury for consideration. The first section cited Con Ed’s alleged failure to provide a spotter. The second, failure to provide secure footing for the excavator and the third section alleged a failure to properly shore the excavation. On behalf of Con Ed, Pat argued that a spotter was not required for the work being performed and the use of spotter in an area where the boom of an excavator could swing 360 degrees coupled with the fact that the excavator was on unsecured cribbing weighing hundreds of pounds made the use of a spotter too dangerous. Pat also maintained that the excavator should have been operated in a perpendicular direction to the creek so as to permit the plaintiff to power out when the excavator started to slide. It was further contended that there was sufficient materials available to build a platform for the excavator if the plaintiff felt the footing was unstable. Lastly, Pat argued that the accident was caused 100% by operator error in placing the excavator parallel to the creek and walking it across wet, slippery timbers. The Health and Safety Plan and the Operator’s Manual also provided that if an operator felt the area was not safe, he should not proceed until any alleged danger was corrected.
Plaintiff demanded 6.5M which was reduced to 4.5M during the trial. 500k was offered. Following a full day of deliberations, the jury found the workplace was safe and returned a defense verdict.