On September 23, 2005, Rafael Lopez was employed as a journeyman laborer for the general contractor at a construction project in Brooklyn owned by the City of New York. He was involved in the placement of rebar on the roof of a building under construction.
While helping a co-worker try to dislodge a piece of stuck rebar, Lopez, then 35 years old, fell backwards and was seriously and extensively injured when he landed on and was impaled by the sharp end of another piece of rebar that was protruding vertically and sharply from the roof’s surface.
Lopez sued the city claiming that his injuries were caused by its failure to keep the site free from sharp projections as required under Labor Law Section 241(6) and a regulation promulgated thereunder, 12 NYCRR 23-1.7[e]. On October 28, 2010, plaintiff’s motion for summary judgment on liability was granted and the case proceeded to a trial on damages only.
At trial, the Kings County jury awarded plaintiff pain and suffering damages in the sum of $5,000,000 ($2,000,000 past – five years, $3,000,000 future – 35 years). The trial judge ordered a reduction of the future damages award to $1,500,000.
In Lopez v. New York City Department of Environmental Protection (2d Dept. 2014), the liability determination has been affirmed and the $5,000,000 pain and suffering verdict has been reinstated.
The court’s decision mentions very little about the massive injuries sustained by the plaintiff:
- The eight inch piece of rebar impaled Lopez through his rectum and up to his abdomen and intestines before it became dislodged at the scene where he lay in excruciating pain and profusely bleeding.
- Emergency surgery to repair the rectal laceration and have a colostomy bag placed; initial hospitalization about two weeks.
- Additional surgery six weeks later to reverse the colostomy and reconnect the bowel tract following which an infection developed resulting in almost four more weeks in the hospital with high fevers and increased pain.
- More surgery due to abcess formation and adhesions.
- Herniated disc at L5-S1 requiring spinal fusion surgery in October 2010 after a year of physical therapy failed to alleviate pain
- Continuing fecal incontinence and sexual dysfunction
- Continuing back and abdominal pain with inability to lift anything over five pounds, bend to pick anything up, climb, work on a scaffold or sit for long periods.
- Depression (with extensive psychiatric treatment)
- Lopez returned to work about six months after the accident, although only on light duty (as a safety engineer) and with accommodations for his continuing need for health care visits. In September 2011, he advised his employer that he’d be out of work for a week due to terrible back pain. He never returned.
- During trial, defendant offered $3,000,000 to settle but the offer was withdrawn after closing arguments.
- In March 2010, with permission from his doctors, Lopez bought a motorcycle which he rode to work about once a week, sometimes at high speeds. He rode after his back surgery in October 2010 but stopped about three months before trial stating that his back “started to flare out” and he was having a lot of pain.