A plaintiff who argued that he could
no longer make his living as a laborer has secured a $1.1 million
settlement in a lawsuit stemming from his fall on ice.
Lester Howell, a construction worker who had
fractured his right ankle, alleged that defendant Telesis
Construction created a dangerous condition when it turned a grassy
field into a parking lot and then allowed snow and ice to
accumulate at the edge of the lot. A second defendant was dropped
from the case after an unopposed motion for summary judgment.
Lawyers on both sides of the case, Howell v.
Telesis Construction, expressed satisfaction with the
settlement.
The attorney for the plaintiff said he
received $1.1 million, which consisted of S950.000 plus a waiver of
a $143,000 workers' compensation lien, because the case was more
than a slip and fall with a broken ankle.
"I think [this] is a tremendous recovery."
said Robert J. Mongeluzzi of Saltz Mongeluzzi Barrett &
Bendesky. "Fracture the ankle of a lawyer, he could go and do what
he normally does. But what if he's a ... laborer? Then it's a whole
different ball-game."
Saltz Mongeluzzi associate Robert N. Braker
said he and Mongeluzzi argued that the case went beyond Howell's
injured ankle, because the treating surgeon, Ronald B. Greene,
opined that Howell could never return to construction work. After
the surgeon's assessment, the attorneys turned to vocational expert
Donald Jennings, who said the plaintiff had limited possibilities
in terms of future work.
"Due to a very limited education and
[Howell's] only ... experience being in the construction industry,
the vocational expert [said] there were very few jobs that he would
be able to handle," Braker said. "And the discrepancy in what he
was earning at the time of the accident and what he might have been
able to earn in the future was significant."
The settlement came Monday after a denial of
Telesis Construction's motion for summary judgment and a mediation
conducted by Edward L. Edelstein of ADR Options.
Kelly McLaughlin & Foster partner David F.
White, defense counsel for Telesis Construction, said he was also
pleased with the mediation and the settlement.
"I think $950,000 is a good result where you
have approximately $2 million of special [damages] to present to
the jury," he said. 'The result reflected the plaintiff's share of
[the] negligence."
Three years ago, Howell was performing general
labor for Parkview Construction, with Telesis as general contractor
for the job. According to the plaintiff's mediation memorandum,
snow began falling three days before the accident, on a Friday.
'Telesis sent all of its employees and the subcontractors'
employees home" that day, the memorandum states.
According to the memorandum, when the workers
returned on Monday morning, Telesis sent Howell out for rock salt,
which he was to deliver at the job site office. "While plaintiff
was unloading the bags of salt and walking from the 'unloading'
area to the parking lot, he fell on the edge of the uneven gravel
lot upon which snow and ice had accumulated," the document
states.
"The main defense was that Howell was the
solution to the problem, but we countered that by saying [Telesis
couldn't] just let a midlevel laborer fix an entire condition that
they had created by just saying, Go throw some rock salt over this
entire area," Braker said.
"It was a daunting liability hurdle,"
Mongeluzzi said. "Our client was the person who was assigned to get
the salt to put down over the snow and ice that had
accumulated.
... To be successful when he slipped on the
snow and ice took a lot of work.
"We made it a construction safety case and
attacked it on what measures did [Telesis] have in place before
[they] started a construction project in the winter when ... it was
going to snow," Mongeluzzi said.
In the mediation memorandum, the plaintiff
alleged injuries including a severely displaced fracture of the
right ankle, post-traumatic degenerative arthritis, post-traumatic
calcification of the peroneal tendons and tarsal tunnel syndrome.
The plaintiff also alleged that during physical therapy for those
injuries, his ankle gave out, causing him to fall and injure his
left knee. Damages alleged included lost wages, loss of future
earning capacity, ongoing medical expenses, a workers' compensation
lien and loss of consortium.