Firm Secures Major Settlement For Injured Operating Engineer

JOSEPH A. CATANIA, JR.

The case presented a real conundrum. The client sustained a devastating ankle fracture which required major surgery to piece together a joint that, in the words of his treating physician, looked as if "he had stepped on a grenade". The operative site where screws and wires were used to hold the bones of the ankle back in place, unfortunately, became infected, requiring massive doses of antibiotics delivered through a port in the client's vein. Ultimately, he was left with a completely disabling injury which prevented him from ever working again as a heavy equipment operator.

This is injury occurred in the middle of a snowstorm.

Other lawyers had rejected the case. The law is clear in New York. Under most circumstances, any injury resulting from a slip and fall occasioned by conditions created by a storm still in progress does not result in liability on anyone's part.

Here, the operating engineer was told to go home in the middle of a blizzard after three to four inches of fresh snow had already fallen on the ground. Our firm took over the case to see if we could "thread the needle" and establish a claim under these challenging facts.

The firm's solid background in construction law, site work, plans, drawings and construction in general came into play. Under New York State Labor Law, an employee of a contractor, under certain circumstances, may bring a claim against parties up the chain of command, such as the owner and general contractor, so as to recover for injuries occasioned by violations of specific regulations or, as was the case here, common negligence on the part of the parties who controlled the area where the accident occurred.

The client insisted that he saw on ice underneath the snow pushed aside by his fall. However, the weather reports did not show freezing rain nor ice storm prior to the time of the accident. Indeed, the most proximate precipitation was several days previous. An examination of the construction drawings filed with the local municipality disclosed, as one would expect, that there was an extensive drainage infrastructure required for the massive truck parking lot where the accident occurred. Because of pressure exerted by the owner, who was operating the business on and in portions of the existing buliding while the major building addition was in the process of construction, the new parking area was put in service before the final or wearing course of macadam had been installed, but after the installation of the base course. Aerial photographs taken after the base course installation and a few weeks before the accident, however, did not show any of the drainage catch basins in the parking lot. That, of course, made no sense. We dug deeper.

The parking lot had been and continued to be in use from the time of the installation of the base course for the three or four weeks up until the time of the accident. In particular, it was used by large tri-axles to move excavated material from one portion of the site to another, necessitating travel over the newly installed base course of the parking lot.

On depositions of the owner's representative and the general contractor's representative, we were able to confirm what had previously been only a theory: The contractor did not wish to have the final course destroyed by the continuing construction activity, and for that reason,

the general contractor did not install it immediately after the installation of the base course. The installation of the base course was necessary in order to be able to accommodate the owner's wishes to use the trailer parking area for its transport vehicles. There was a contractual obligation on the part of the contractor to protect the parking lot storm drainage system from infiltrate. This became a particularly acute problem because of the mud-caked transport vehicles used to move excavated material over the lot. Precipitation caused fines and granular material from the truck activity to move through the swales toward the catch basins. This brought two factors into play, which caused the accident. Because the final course wasn't installed, the elevation of the top of the catch basins was approximately two inches above the surrounding base course macadam. That meant that if there was precipitation, it would build up in a pond around the catch basin before it finally reached a height where it could spill over into it. Since this accident occurred during cold weather, those ponds froze, creating ice conditions. The problem was compounded, however. In an attempt to continuously protect the drainage system from material tracked across the parking lot, filters were put below the catch basin grate and landscape fabric (black material) installed on top of the grates, all in an attempt to filter out, essentially, mud. Of course, neither the filters nor the landscape fabric were ever changed nor cleaned. As a consequence, the catch basins failed to drain any accumulated water any time there was precipitation or snow melt. Therefore, the parking lot was pock-marked with 50 foot wide ponds in the areas of the catch basins. The attempts to filter the mud and muddy water with landscape fabric explained the curious aerial photographs' lack of evidence of the catch basins. The black fabric matched the black macadam. From above, it all looked the same.

On the day that the accident occurred, the parking lot was loaded with significant areas of ice. Temperatures had dropped over the evening and the ponds had froze. The three to four inches of snow on the ground only served to obscure those areas where the ice had accumulated, thereby creating a trap. Thus, the theory was not that the storm and snow caused the accident, but rather the ice trap that was created by the contractor. When our client, the operating engineer, quit for the day at his supervisor's instructions, he grabbed his equipment, two GPS units, and gingerly attempted to walk from his machine to the tool trailer. That path brought him over an area of ice ponding that he could not see because of the snow. His feet to slipped out from underneath him and he crashed down on the ankle, fracturing it in several pieces.

This theory won the day. The insurance carrier for the general contractor recognized the validity of our logic and the exposure it faced if the case were taken to verdict. Our client's claim was for not only his extensive past and future pain and suffering and future disability, but the significant loss of wages he suffered and will continue to suffer in the future, since he can no longer operate heavy equipment.

We were able to secure a very significant settlement sufficient to pay off his worker's compensation lien and secure for him a fund of future monies and legacy for his wife and family should anything happen to him.

We pride ourselves at CMMR for our ingenuity and passion in representing our clients. A never-give-up attitude, tempered by realistic assessment of the probabilities of success has guided our clients over the years through the more difficult periods in their lives, especially when litigation is involved. If you have any questions concerning personal injury or construction issues, don't hesitate to call one of the attorneys at CMMR.