On June 30, 2006, Manuel Guallpa fell to the ground from a ladder 10 feet high while repairing windows at a storefront construction site in Queens County. His right ankle sustained the brunt of the fall and he was taken to the local hospital where he was diagnosed with an intra-articular fracture of the medial malleolus.

Mr. Guallpa’s ankle was casted for six weeks but the fracture did not heal and open reduction internal fixation surgery was required six months later.

Within months of his surgery, though, he began to regress and a second surgery was required in August, 2008, during which the hardware was removed and scar tissue was cleaned out.

Despite the two ankle surgeries, Guallpa, 23 years old at the time of his accident, ended up with:

  • an antalgic gait
  • intra-articular arthritis
  • inability to return to construction work
  • the need for more surgery – either a total ankle replacement or an ankle fusion

Guallpa claimed that he also sustained a back injury, though he didn’t undergo any treatment for several months and the defendant argued that it was unrelated. Nonetheless, Guallpa claimed he was suffering from back pain that radiated down his leg and he underwent a pain management program including opiate medications and epidural steroid injections.

A year after the accident, an MRI showed a large herniated disc at L4-5 and he underwent a lumbar diskectomy in November 2008.

A left shoulder rotator cuff impingement injury was also claimed but it was treated without surgery and did not appear to be a major part of plaintiff’s case.

Guallpa sued the building’s owner claiming liability under Labor Law Section 240(1) which requires building owners to furnish ladders to construction workers so as to provide the worker with proper protection. In this case, it was alleged that there was no safety device provided and no one securing the ladder.

Summary judgment was granted to Guallpa in 2009 and a damages only trial was held in October 2010

The Queens County jury awarded plaintiff pain and suffering damages in the sum of $2,219,571 ($791,000 past –  4 years, $1,428,571 future – 28 years).

The defendant appealed on the ground that the award was excessive; however in Guallpa v. Key Fat Corp. (2d Dept. 2012), the entire $2,219,571 pain and suffering verdict has been affirmed (as were the additional awards of $285,360 for past and future loss of earnings and $535,714 for future medical expenses).

Inside Information:

  • Surveillance video taken by an investigator for the defendant over two days in July 2009 was shown to the jury. It showed plaintiff walking a few blocks and carrying grocery bags to a car. Defense counsel argued that the video demonstrated plaintiff had a normal gait and no apparent disability. Plaintiff’s counsel pointed out that the tape was only two and a half minutes from two days of surveillance and that they were meaningless since there was no claim of total disability.
  • Defense counsel argued that plaintiff’s only injury was to his ankle and that the jury should award past (but no future) pain and suffering damages in the sum of $50,000; whereas plaintiff’s counsel asked the jury to award $925,000 for past pain and suffering plus $2,400,000 for the future.
  • Plaintiff was born in Ecuador and came across the border in Arizona without papers to get a job as a laborer. In summation, defense counsel conceded that while plaintiff was "undocumented" he was nonetheless "entitled to bring his claims"" but that "doesn’t mean he has to walk out of here with oodles and oodles of money."
  • Plaintiff’s counsel (Michael A. Madonna, who’s obtained several outstanding verdicts recently) stated in summation that "corporations have no soul" and that they can only be told what to do "by hitting them in their bank account." The defendant unsuccessfully argued on appeal that these remarks were unfairly prejudicial.
  • The pain and suffering verdict appears to be "at the higher end of the range of what has previously been determined to constitute reasonable compensation for somewhat similar injuries," a concession dangerously but brilliantly made by plaintiff’s appellate counsel, Michael T. Altman, in his winning brief to the appellate court.