In Miraglia v H & L Holding Corp., 2007 NY Slip Op 00093, the defendant employer alleged that the plaintiff was a recalcitrant worker since he walked on a plank over a trench rather than using a ladder. The First Department rejected that defense since the employer testified at trial "that workers were permitted to walk on planks across a trench at the worksite, provided they doubled the planks."
The Court also stated held that even the use of doubled-up planking was insufficient protection and violated Labor Law s. 240(1):
(P)laintiff's expert offered unchallenged testimony that even doubled-up planking would not have provided adequate protection because the planks were unsecured and subject to movement. Since the planking was insufficient to protect plaintiff from the elevation-related hazard that caused his harm, liability pursuant to Labor Law § 240(1) was established; plaintiff was not, under any view of the evidence, the sole proximate cause of his injuries...At most, plaintiff's failure to double the planks would constitute negligence. However, the doctrine of comparative negligence is not available to diminish a defendant's liability under Labor Law § 240(1). (Internal citations omitted).
Following trial, the jury awarded the 45-year-old plaintiff, who was impaled by a steel bar from the scrotum to L2 on his spinal cord, resulting in paraplegia and associated complications, $5 million for past pain and suffering, $10 million for future pain and suffering over 35 years, and $8,295,000 for future medical expenses. However, the Court held that the large award for future pain and suffering was not supported by the evidence, and ordered a new trial on that issue unless the plaintiff agreed to accept a reduced award for future pain and suffering in the amount of $5,000,000. The Court also reduced the award for future medical expenses to $8,056,222, due to an error in calculating that figure.
Wow. Talk about a large monetary award! I bet Upstate lawyers reading this summary are drooling. Verdicts like that are practically unheard of around here.