GVK Partner Daniel Mevorach and Associate Thomas Vu obtained summary judgment dismissing Plaintiff’s Complaint, in its entirety, on behalf of our client Consolidated Edison Company of New York (“Con Ed”) in a very high exposure construction accident matter pending trial before Justice Carmen Velasquez in the Supreme Court, Queens County.
The Plaintiff was a 32 year-old union excavator operator employed at a project for reconstruction of a timber bulkhead retaining wall at the Con Ed Power Plant in Astoria, New York. Plaintiff was operating the excavator to remove timber cribbing from the shoreline. When he drove the excavator along the shoreline on some of the wet timbers facing perpendicular to the shore line, the excavator lost traction and slid into the water, with Plaintiff narrowly avoiding drowning while trapped inside the submerging excavator. As a result of his incident, Plaintiff alleged orthopedic injuries to his back and neck, and more significantly, post-traumatic stress disorder (“PTSD”) due to his near death experience. Despite his young age and salary, Plaintiff had not returned to work due to the ensuing psychological trauma from his incident.
Plaintiff’s counsel issued a settlement demand of $12 million based upon findings from a team of expert witnesses comprising a psychologist, psychiatrist, neurologist, economist, vocational rehabilitation expert, and site safety consultant. Plaintiff’s economist was prepared to present extensive evidence that due to Plaintiff’s young age, high-paying occupation, and work-life expectancy, his total economic losses were in the range of $11.5 million – $17 million.
We expediently marshaled an evidentiary record, including depositions of non-parties, to argue that Plaintiff’s incident was wholly attributed to his negligently operating the excavator over the timber pile that he excavated but failed to clear, and that Con Ed was not negligent and did not violate Labor Law sections §200, §240(1) or §241(6) in causing Plaintiff’s incident. In granting summary judgment to our client, the Court agreed with our position that Plaintiff’s incident did not implicate §240(1) since his incident did not involve any elevation-related hazard that any protective device under the provision would have prevented. Of further significance, the Court agreed with our arguments in defense of Plaintiff’s numerous §241(6) and industrial code allegations, which included those relating to the meaning of “trenching and area-type excavation” activity, whether Plaintiff was properly supervised in the performance of his task, whether Con Ed permitted his operation of the machine upon unstable terrain that would cause dangerous tilting, and the adequacy and power capacity of the excavator that Plaintiff was hired to operate.
After consulting with our client, we found an expert with years of experience in the field of power equipment, who helped us to clarify for the Court the technical and somewhat obscure provisions of the Industrial Code, and worked closely with him to develop the arguments the Court ultimately adopted in dismissing every code violation cited by Plaintiff.
This case goes to show that with attention to the evidentiary record, and close assistance of a qualified expert, Labor Law 241 (6) cases can be defensible.