Phila. Lawyers Overcome ‘Contributory Recklessness’ to Win $18.2M in Dela. Boom Collapse Case

The deceased had been working more than 100 feet in the air on a cell antenna during a National Weather Service wind advisory when the fatal tip‑over occurred.

A fatal boom‑lift collapse during high winds has led to a more than $18 million jury verdict in Delaware.

On Monday, Delaware Superior Court Judge Francis J. Jones Jr. entered a $18.2 million judgment against construction engineering firm Nexius Solutions Inc. and technical training company Myndco Inc. following a jury verdict finding the companies liable for the 2020 deaths of Jovan and Bryan Maldonado. The brothers, laborers on a telecom construction crew, were killed when a boom lift tipped over amid high winds during a project at the Bethany Beach site.

The jury found the two defendants’ negligence to be a proximate cause of the brothers’ deaths, assigning 65% fault to Nexius, 30% to Myndco, and 5% to the Maldonados. The award included more than $4 million to Jovan Maldonado’s estate, more than $3.8 million to the estate of Bryan Maldonado, and $4.75 million to each of the Maldonados’ parents.

According to court papers, the brothers had been working more than 100 feet in the air on a cell antenna during a National Weather Service wind advisory when the fatal tip‑over occurred.

Attorneys David Kwass and Michael Zettlemoyer of Saltz Mongeluzzi Bendesky represented the plaintiffs.

According to Kwass, the trial was unusual because both defendant companies are no longer operating, creating logistical challenges in assembling a live defense witness lineup.

Many former employees had scattered across the country, which required Zettlemoyer to fly nationwide during discovery to conduct depositions, Kwass said.

As a result, the defense relied heavily on recorded testimony, with nearly half of the witnesses presented to the jury via video. While Kwass said that the approach is not ideal in a courtroom setting, he noted that jurors appeared attentive and engaged throughout the testimony.

The attorneys also said focus group research played a central role in shaping their trial strategy. Kwass explained that jurors’ reactions helped refine the case narrative—particularly which decision-makers drew the strongest responses and which aspects of the case they really took issue with.

“[W]hat we heard back from the focus groups was that they didn’t like it that defendant Nexius Solutions had shut down aerial and crane work in the Baltimore-Washington region, in the New York region, in New England, basically all up and down the eastern seaboard, but they just didn’t get to the Philadelphia, South Jersey, Delaware region,” Kwass said. “We knew the focus groups really didn’t like that fact, and so that’s really how we sort of framed the case.”

Claiming that Nexius was aware of the dangerous weather and should have shut down the job site, Zettlemoyer added that, “Our position is that no one should have been put in a position to have to make judgment calls that day.”

Another unusual element to the case was the defense’s argument of contributory recklessness, which—unlike contributory negligence—can completely bar a plaintiff’s recovery when the plaintiff is found to have acted in reckless disregard of their own safety. The issue was the first question on the verdict sheet, and a “yes” answer would have resulted in a defense verdict.

“[T]he idea was that given the high winds, the boys were reckless, like they’re just extraordinarily negligent, for having decided to try to go up in the boom and do their work that day at all. And what became so problematic about the defense is that it was the very first question,” Kwass said, claiming he had never encountered the strategy in more than 35 years of practice.

Ultimately, the jury did not find contributory recklessness, and instead assigned the majority of the negligence to the defendants.

The case was defended by Marc Perry and R. Joseph Hrubiec of Post & Schell for Myndco and by Walter O’Brien and Krista Shevlin of Weber Gallagher for Nexius. Hrubiec declined to comment, and O’Brien did not immediately respond to a request for comment.

In Andino v. Nexius Solutions, the plaintiffs alleged that Nexius Solutions, the general contractor on a T‑Mobile cell antenna replacement project in Bethany Beach, exercised active control over the jobsite and assumed responsibility for safety. They argued Nexius breached that duty by allowing uncertified workers to operate a rented boom lift, using a deficient Job Safety Analysis, and failing to shut down the site. Further, they alleged that Nexius and its affiliates neither stopped work nor enforced safety protocols, and that Nexius’s absence from the site heightened the risk.

Plaintiffs also alleged that Nexius affiliate Myndco improperly cleared the brothers for field work without required training and negligently delegated training responsibilities to the brothers’ employer, Velex Inc., which they claim lacked authority to certify operators.

Along with arguing comparative recklessness, both defendants argued comparative negligence, since the two were operating the boom lift without the required certifications. They also argued Velex was negligent for failing to stop unqualified workers from operating the boom in high winds. Myndco also contended it didn’t owe a duty to provide the training and that it didn’t improperly release the decedents to field work.

According to attorneys, the trial lasted one week, and the jury deliberated for about four hours before returning its verdict Friday. Judgment was entered Monday.