Plaintiff, a 45 year old construction laborer, was working on a new building construction project. While shoveling sand into a cement mixing machine in the rear courtyard of the building, plaintiff was struck by an unsecured 5 gallon bucket containing remnants of dried cement. Plaintiff filed a claim against the Owner of the construction site and the General Contractor on grounds that the defendants violated NYS Labor Law Section 240. The defendants filed a Third-Party Complaint as against Hurtado’s employer. Plaintiff’s motion for partial summary judgment for Labor Law 240 violations was granted. At the time of trial, the defendants agreed to apportion liability at 50% and the matter proceeded to damages only.
As a result of the accident, plaintiff sustained a right mid-shaft forearm fracture and was treated and released from the ER on the date of the accident. After plaintiff’s cast was removed six weeks following the accident, plaintiff complained of right shoulder and wrist pain, and began a course of physical therapy. Plaintiff eventually underwent arthroscopic surgery in July 2010 and October 2014 to repair a rotator cuff. Plaintiff also underwent an arthroscopy to his right wrist in March of 2015. Plaintiff claimed all his injuries were related to the accident of July 2008 and were permanent in nature.
Plaintiff was unable to return to work following the accident as a construction laborer earning approximately $20,000 per year. Plaintiff also claimed that he would require future medical care, including orthopedic visits, pain management injections, physical therapy, and medication.
Defendants contended that the fracture, treated with a closed reduction and casted for six weeks was the only injury related to the accident of July 2008. Defendants argued that the only complaint Hurtado made in the emergency room on the date of the accident was forearm pain, that the fracture fully resolved, and there were no permanent injuries to his right arm. Defendants argued that the conditions to his right shoulder and right wrist, if any, were unrelated to the accident and not traumatic in nature
Judd F. Kleeger tried the case to verdict on August 7, 2015. The jury awarded damages totaling $1,120,000 for past and future pain and suffering, past and future lost earnings, and past and future medical costs.