On December 4, 2007, Greg Leszczynski was employed as part of a construction crew digging trenches and installing sewer lines in Grahamsville, New York. He was standing in a trench about nine feet deep where pipe was being laid when a frozen lump of stone, about 18 inches in diameter weighing about 60 pounds, came out of a loader bucket, bounced into the trench and then struck him in the head.
Leszczynski, then 31 years old, was injured and he sued three parties in Sullivan County Supreme Court – the Town of Neversink (the street site owner), the project’s engineering firm (dismissed prior to trial) and IMS Safety, Inc. (the project’s safety consultant).
The town settled during the liability phase of the trial and IMS was then found vicariously liable under Labor Law 241(6) due to the negligence of plaintiff’s employer (the general contractor that hired IMS) .
At a separate trial on damages, a new jury awarded plaintiff pain and suffering damages in the sum of $175,000 ($25,000 past – four years, $150,000 future – 35 years).
On appeal in Leszczynski v. Town of Neversink (3d Dept. 2013), the $175,000 award has been affirmed despite plaintiff’s claim that it was inadequate.
Here are the injury details:
- herniated disc at L5-S1
- three epidural steroid injections in 2008
- L5 hemilaminectomy (surgical removal of one of the two laminae in a vertebra) and foraminotomy (surgical decompression of nerve roots) on May 25, 2009
- back pain causing inability to lift or bend, do chores around the house, cut grass or shovel snow, or engage in previously enjoyed recreational activities such as swimming, snowboarding and weightlifting
- concussion with severe headaches, continuing through trial
Defense counsel argued, persuasively, that plaintiff’s injuries were not as severe as he claimed, his complaints were subjective, he had significant prior related injuries and he had recovered quite well by the time of trial. In support of these claims and to attack plaintiff’s credibility, testimony was adduced and arguments were made by the defense as follows:
- plaintiff continued to work on the day of and for the two days after the accident before seeking any medical treatment for back pain and headaches
- within a few months of the accident plaintiff resumed working
- at a pre-trial deposition, plaintiff testified that the only treatment he ever had for any pre-existing back condition was one emergency room visit 10 years earlier; at trial, though, a chiropractor testified that he treated plaintiff 37 times for lower back pain in 1998
- there was no causal relationship between the trauma and the headaches (according to a defense medical expert), an MRI of plaintiff’s brain was normal and headaches are the “quintessential subjective complaints”
- plaintiff’s herniated disc was treated successfully with surgery which was “minimally invasive,” he was able return to his former employment and had no permanent injury to his back
- Plaintiff settled with the Town of Neversink for $25,000.
- In closing arguments, plaintiff’s counsel asked the jury to award $300,000 for past pain and suffering plus $500,000 for the future; defense counsel suggested $150,000 for the past plus $25,000 for the future.
- The appellate court affirmed awards for loss of earnings in the sums of of $143,700.50 (past) and $100,000 (future – 20 years). After the accident, plaintiff left his heavy duty laborer job for a less demanding one operating a 65 ton loader in a quarry.