This action involved two plaintiff masons, each 40 at the time, who were involved in the construction of a pharmacy, and in which the plaintiff contended that the defendant general contractor failed to provide bracing as required by OSHA as the wall was being built. The wall collapsed and the plaintiffs fell 22 feet.
The plaintiff maintained that OSHA regulations require the use of temporary bracing for masonry walls over eight feet in height unless the wall was adequately otherwise supported. The plaintiffs contended that the wall was not braced and that as the plaintiffs were near completing the wall while working from an adjacent pump scaffold, it collapsed, the plaintiffs lost their balance and fell, landing on top of the concrete block and steel lintels that were part of the wall.
The incident occurred as the plaintiffs were constructing the east, or final exterior wall of the pharmacy. The prior three walls had been constructed over the course of the preceding several months and the plaintiff maintained that proper wall bracing was not utilized in accordance with OSHA on these walls as well.
The initial plaintiff contended that he sustained an open fracture of the right calcaneus, as well as a torn plantar fascia on the right side. The plaintiff underwent and open reduction and internal fixation of the fracture. The plaintiff contended that because of the infection, he required some nine irrigation and debridement procedures and a split-thickness skin graft. This plaintiff maintained that right foot is severely deformed and that he must wear special padding in his shoes to minimize pain when ambulating. The plaintiff also contended that he continues to experience a burning sensation within the right foot, and that the skin feels tight due to the frequent swelling episodes. The plaintiff contended that the plaintiff will have to cope with the sequelae from the injuries for the remainder of his 35 year life expectancy.
This plaintiff also maintained that in order to treat the compression fracture, he wore a TLSO brace for approximately three months. The plaintiff maintained that this course was inadequate and that he also underwent an epidural injection, which did not give him any relief. The plaintiff contended that he also received two facet joint injections, without improvement. The plaintiff’s orthopedist indicated that his next option would be fusion surgery. The plaintiff contended that because of the risks, he has declined, deciding that he would attempt to live with the lumbar pain. He was instructed to continue his home exercise program, take over the counter medication for his pain as needed, and follow-up on an as needed basis.
The plaintiff also underwent surgery to treat the fracture to the left humerus. The plaintiff has pain sleeping at night and is unable to reach over his head or behind his back. He experiences clicking, popping and catching in the left shoulder. The plaintiff maintained that he will be permanently unable to sit or stand for extended periods without suffering pain and that walking is painful and difficult as well. The plaintiff related that he generally uses a can to assist in walking.
The plaintiff contended that he can no longer do any normal household, working or recreational activities that he previously performed. Prior to the accident, the household chores were shared in the home by the plaintiff and his wife. The plaintiff maintained that he must now rely on his wife to perform the majority of household tasks.
This plaintiff further contended that during the initial hospitalization, he developed a cardiac arrhythmia post-operatively, and underwent multiple procedures in the cardiac lab for cardiac ablation. After being discharged from the hospital to a rehabilitation facility, the plaintiff was re-hospitalized for supra ventricular tachycardia, which required DVT prophylaxis and cardiac catheterization. There was no evidence of continuing cardiac difficulties. This plaintiff, who maintained that he will be permanently unable to work, is an undocumented alien and made no future income claims.
The second plaintiff sustained fractures to the pelvis, right scapula and rib. This plaintiff missed seven week from work. The plaintiff contended that he works despite continuing pain and avoids engaging in sporting and other athletic endeavors formerly enjoyed. This plaintiff also contended that he sustained a degloving injury to the scalp that required suturing. The scarring is within the hairline. The plaintiff contended that this injury has caused some numbness and frequent headaches that the plaintiff maintained will continue permanently. He also contended that he suffers frequent nightmares and flashbacks of the event, as well as a fear of heights.
The first plaintiff’s case settled for $2,900,000 and the second plaintiff’s case settled for $325,000.
REFERENCE:
F.D. v. B.G., et. al. Docket no. MID-L-9573-09, 05-12.
Attorneys for plaintiffs: Charles A. Cerussi of Cerussi & Gunn, P.C. in Shrewsbury, NJ and Michael T. Carton of Kroll Heineman Carton, LLC in Iselin, NJ.
COMMENTARY:
The plaintiff emphasized that although OSHA regulations require temporary bracing for masonry walls over eight feet in height unless the wall is adequately supported so it will not collapse, the wall in question was 24 feet high. Additionally, the evidence that the incident occurred when the final of four exterior walls were built and that such safeguards had not been taken when the previous three walls were constructed would have undoubtedly heightened the jury response which would already be anticipated because of such a traumatic incident.
It should be noted that the plaintiffs are undocumented aliens and could not make a claim for future lost income. It is felt that the jury could well appreciate that the life of the initial plaintiff, who has not been able to return to work, and whose permanent injuries included a significant deformity, has been inextricably altered even in the absence of a future lost wage claim.
