$1,100,000 – Laborer’s Fractured Ankle

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 & 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.

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