Francisco Santaella had been a construction worker for 20 years. His employer, Building Contractors, Inc., had a contract with United Parcel Services, Inc. in connection with a building project in Queens, New York when, on July 26, 2007, Francisco was working on a ladder. It shifted and he fell head first to the ground 14 feet below. With his arms outstretched to break his fall, both wrists were fractured.
It’s safer on the way up ladders.
A lawsuit followed when UPS would not accept responsibility for the accident despite the strict provisions of New York’s Labor Law Section 240 that provide for near absolute liability for the injuries of construction workers who fall from ladders at work sites.
As the jury was being selected on April 26, 2010 in Manhattan Supreme Court, the parties in Santaella v. United Parcel Services, Inc. entered into a high-low agreement whereby the defendant agreed to pay $350,000 as a minimum in the event of a jury verdict of either no liability or an award of less than the agreed minimum. And plaintiff agreed to limit to $950,000 the maximum amount UPS would have to pay in the event a verdict for plaintiff exceeded $950,000. Were the verdict to fall in between the high and the low then that would be the amount the defendant would pay.
There are many reasons for entering into high-low agreements. Chief among them are defendants concerned about a runaway excessive jury verdict and plaintiffs wanting to assure a minimally acceptable recovery.
Mr. Santaella’s injuries resulted in two casts and one arm in a sling for a month. He had fractures of the distal radius in each wrist – the right one required open reduction internal fixation surgery (ORIF) with the insertion of a metal plate and screws and allograft bone grafting. A year later, he also underwent arthroscopic surgery in his right shoulder (probably related to the wrist injury on that side).
Here is what it looks like after a distal radius fracture with ORIF:
After plaintiff presented his evidence, the trial judge directed a verdict in his favor on liability and then the jury awarded the 53 year old Mr. Santaella pain and suffering damages in the sum of $1,500,000 ($500,000 past – 3 years, $1,000,000 future – 24 years).
Due to the high-low agreement, plaintiff will receive $950,000.
- Defendant had offered $350,000 to settle before trial while plaintiff would have agreed to $600,000.
- The right wrist injury was clearly the main injury in this case but the parties – actually, the respective medical witnesses – disagreed over its severity and whether the fracture was into the joint space (meaning likely arthritis and possible wrist fusion surgery in the future). Here is the testimony of the defense doctor.
- The jury’s $1,500,000 award was the amount suggested in a well-crafted summation by plaintiff’s attorney, Michael Madonna.
- In view of recent appellate court decisions in wrist injury cases – for example Young v. City of New York and Cabezas v. City of New York which we’ve discussed here and here – it appears that the $950,000 recovery in Santaella v. United Parcel Services, Inc. is an outstanding result for the plaintiff.