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Workplace Safety – Jackhammer Too Heavy for Safe Use, Worker Alleged

SETTLEMENT: $1,500,000

CASE: Gustave Barnett v. The Port Authority of New York and New Jersey, Koch Skanska, Inc., Skanska (USA) inc. Slattery Skanska, Inc., No 101001/02

COURT: New York Supreme. JUDGE: Barbara Kapnick. DATE: 1/23/2008

PLAINTIFF ATTORNEY(S): Alan M, Greenberg Law Offices of Alan M. Greenberg, New York, NY

DEFENSE ATTORNEY(S): Joseph A. D’Avanzo, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY

FACTS & ALLEGATIONS: On May 4, 2001, plaintiff Gustave Barnett, 37, a construction worker employed by Minelli Construction Co., was doing repair work on the Outerbridge Crossing, a bridge that connects Staten Island and New Jersey. Minelli was a subcontractor hired to chip out designated weak or hollow parts of the concrete roadway. The demolished areas would then be refilled with new concrete. The chipping was accomplished by Minelli employees, including Barnett, who would jackhammer the weak spots until the corroded concrete was broken and able to be shoveled.

Sometime during the evening of May 4, Barnett was pounding. the bridge deck with a 90-pound jackhammer when it penetrated down through the entire deck or roadway- Barnett saw open space through the deck, and, fearing that he would plunge through, reflexively pulled the jackhammer up from the gaping hole. He claimed that the sudden violent movement caused a snap of his neck. He contended that he sustained injuries of his back and neck.

Barnett sued the bridge’s owner, the Fort Authority of New York and New Jersey; the project’s general contractor, Koch Skanska Inc.; and two related parties, Skanska (USA) Inc. and Slattery Skanska Inc. Barnett alleged that the defendants violated the labor law.

Barnett’s counsel claimed that the project’s contract specifically stated that the size of the jackhammers to be used to chip the concrete would be no larger than 35 pounds. In reality, throughout the course of the multi-year project, Minelli’s workers were using 60- or 90-pound jackhammers. Barnett’s counsel contended that port authority inspectors and Koch Skanska supervisors were aware of the use of the non-specified equipment but did nothing to stop its use. He claimed that the contractor should have known that a 90-pound jackhammer would break through the bridge deck. Thus, he argued that the defendants failed to provide a safe, appropriate jackhammer, in violation of Labor Law § 240 and 241(b).

The defendants countered that New York labor law did not apply because the incident occurred on the New Jersey side of the bridge- The defendants also argued that Minelli selected the jackhammer. They further claimed that the injury would have occurred with a lighter jackhammer as well as a 90-pound jackhammer.

Before trial, a New York referee dismissed the labor-law claims because the incident did not occur in New York. A defense motion for summary judgment for the remaining claims was denied. Afterward, the trial court, deciding a motion for summary judgment, ruled that New Jersey law applied and that the defendants owed a duty of care to Barnett.

INJURIES/DAMAGES: decreased range of motion; depression; discectomy; fission, cervical; fission, lumbar; herniated disc at C2-3; herniated disc at C4-5; herniated disc at C5-6; herniated disc at C6- 7; herniated disc at L3-4; herniated disc at L4-5; herniated disc at L5-Sl; laminectomy

Barnett claimed that he sustained herniations of his C2-3, C4-5, C5-6, C6-7, L3-4, L4-5 and L5-S1 intervertebral discs.

Immediately after the injury, he rested for about 40 minutes.

He then completed his shift on light duty, sweeping debris. He returned to work the next day and continued on light duty. He claimed that increasing pain caused him to stop working altogether on May 24, 2001.

Barnett initially underwent conservative treatment, but he contended that it was not adequate. In January 2004, he underwent surgery that included a cervical laminectomy, which is the excision of a vertebra’s posterior arch; a cervical diskectomy, which is the excision of a cervical disc; and fusion of the associated areas of his spine.

In July 2007, Barnett underwent fusion of a portion of his lumbar spine. He claimed that his inability to work produced depression. He was hospitalized for eight days in January 2004 for severe depression.

Barnett wears a plastic brace to protect his spine and takes daily pain medication. His cervical pain has subsided, but his fusion left him with marked restriction of motion. He claimed that his lumbar pain was still as intense as it was prior to surgery.

Barnett sought recovery of damages for his past and future pain and suffering.

The defendants argued that Barnett’s treatment was illogical given his symptoms, and that surgery was unjustified, given inconsistencies in several different spinal MRI films having been read as showing either bulges or herniations.

RESULT: After the completion of jury selection, but before the scheduled start of the trial, the parties agreed to a $1.5 million settlement.

INSURER(S): Lloyd’s of London

PLAINTIFF EXPERT(S): Rob Frein, demonstrative evidence, Glen Head, NY; John A. Galeno, M.D., orthopedics, White Plains, NY; Alan M, Leiken, Ph.D., economics, Stony Brook, NY; Tony Raimo, safety (construction); Hugh Thomas, medical illustrations, New York, NY

DEFENSE EXPERT(S): Robert S. April, M.D., neurology, New York, NY; Maurice C. Carter, M.D., orthopedics, New York, NY; Linda Stein, rehabilitation counseling

EDITOR’S NOTE: This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.

—Eddie Vega