On August 11, 2008, Fredy Figueroa was employed as a sprinkler system installer in connection with a $350,000 landscaping project in the backyard of a home in Nissequougue (Suffolk County). Fredy was excavating a two foot trench when the retaining wall next to it collapsed and pinned him inside the trench for 10 minutes, requiring several workers to dig him out and causing significant ankle injuries.
Fredy sued Ireland-Gannon Associates, Inc. (“IG”), the landscaping and design company that was the general contractor and construction manager of the project. He also named as defendants the electrical contractor, the masonry contractor and the homeowners but they were all either dismissed before trial or found not liable by the jury.
On May 9, 2012, the Queens County jury (plaintiff sued there because that’s where he lived) returned a verdict finding IG liable under Labor Law Sections 200 and 241(6) and common law negligence. A separate damages only trial ensued.
On May 30, 2012, the jury returned a verdict awarding plaintiff pain and suffering damages in the sum of $2,280,000 ($1,000,000 past – 3 3/4 years, $1,280,000 future – 40 years).
The defendant appealed claiming there was no basis for finding it was liable because (1) there was insufficient evidence that IG had the authority to control the manner of work resulting in the accident, as required under Labor Law Section 200, (2) there was no structure incident to the excavation, as required under Labor Law Section 241(6) and related regulations and (3) there was insufficient evidence that IG was negligent. Defendant also claimed that the damages awarded for pain and suffering were excessive.
In Figueroa v. HLM Electric, Ltd. (2d Dept. 2014), the appellate court rejected all of defendant’s arguments and affirmed the jury’s imposition of liability against IG.
Without any mention at all as to the nature of plaintiff’s injuries, the appellate court affirmed the $2,280,000 verdict for pain and suffering. Here are the injury facts:
- non-displaced ankle fracture with ruptured syndesmotic ligaments
- surgery #1 on 9/5/08 – open reduction and internal fixation of distal syndesmotic injury with placement of two cortical screws
- surgery #2 on 3/13/09 – removal of broken screws and release of superficial peroneal nerve from surrounding scar tissues
- surgery #3 on 8/14/09 – modified Brostrom procedure (repair of damaged ligaments on the lateral side of the ankle), arthroscopic synovectomy and exploration/release of superficial peroneal nerve
- use of crutches for a year and a half and a CAM boot through 2010, use of a cane thereafter with custom made orthotics and ankle braces
- continuing pain and limitations of ranges of motion
- unable to return to work, play sports with young children or take long walks with his wife
Plaintiff’s testifying physician claimed he will need two more surgeries at some point in the future – one to excise a neuroma (an inflamed portion of a nerve) in his foot and the other to fuse his ankle; whereas the defense argued that (1) there was no basis for such conclusions, pointing to the facts that MRI and EMG studies were all negative for any nerve injury, (2) plaintiff never sought treatment with a neurologist for his alleged nerve pain and (3) chronic calcification (indicative of arthritis) consistent with a possible prior injury was noted by plaintiff’s surgeon in his operative report from the first surgery.
Defense counsel argued in his damages summation that (a) plaintiff’s injury was a straightforward ligament sprain that was repaired in the first surgery, (b) the second surgery (to remove broken screws) was “standard procedure” and “nothing unusual,” because the screws were simply removed and not replaced as they had “done their job” and (c) the third surgery was unnecessary because there was no objective evidence or proof of any nerve damage.
- In summations, defense counsel suggested that the jury award plaintiff $100,000 for his pain and suffering; plaintiff’s counsel suggested $4,500,000. Plaintiff’s pre-trial settlement demand was $3,000,000 against which no offer was made.
- Defense counsel argued that the then 34 year old plaintiff was able to return to some form of work and, alternatively, that plaintiff had insufficient evidence of documented earnings or filed income tax returns to consider an award for lost earnings. The appellate court affirmed the jury’s award for past and future loss of earnings in the sum of $471,000.
- The trial lasted two months (with a 10 day break after the liability verdict).