On August 3, 2011, Andrew Lombardi was injured while working as a carpenter on the sixth floor of an office building at 205 Hudson Street in Manhattan.
Mr. Lombardi, then 41 years old, was employed by Centre Street Systems, Inc., one of several trades working for several weeks on the gut renovation of 30,000 square feet. His duties included framing walls and laying out office spaces. At about 12 noon on the day of his accident, Lombardi was on his way to lunch when he stepped on a piece of electrical conduit debris causing him to fall down and injure his foot.
In his ensuing lawsuit, a Manhattan jury determined that the general contractor violated Labor Law 241 (6) and was 65% at fault (and that plaintiff was 35% at fault). The jury then awarded pain and suffering damages in the sum of $800,000 ($400,000 past – 4 years, $400,000 future – 8.5 years).
Following a post-trial motion by the defense arguing that the damages award was excessive, the trial judge issued a decision reducing the award to $125,000.
Both sides appealed – plaintiff arguing that the jury’s pain and suffering awards should be reinstated, defendant arguing that the liability verdict should be reversed.
In Lombardi v. Structure Tone, Inc. (1st Dept. 2016), the appellate court affirmed the liability verdict and ruled that $770,000 is the proper amount for pain and suffering in this case – reinstating the $400,000 past pain and suffering award and allowing $370,000 for future pain and suffering. The $770,000 represents plaintiff’s gross pain and suffering award – to be reduced by 35% for his comparative negligence.
As set forth in the court’s decision, plaintiff sustained a right foot fracture requiring two surgical procedures. Here are the injury details:
- comminuted, displaced and avulsed fracture of 5th metatarsal
- first surgery on 8/11/11 – open reduction internal fixation with insertion of metal plate and screws
- second surgery on 10/13/11 – removal of hardware and debridement
- hyperbaric chamber treatment (20 times for 90 minutes each) and debridements
- impeded and prolonged healing due to pre-existing diabetes
- tendinosis of the peroneal brevis
- instability and weakness of foot, decreased range of motion and persistent pain, all preventing return to construction work and any recreational activities
- plaintiff was diagnosed with Type 1 diabetes when he was in his 30’s and had developed diabetic neuropathy in his right foot but never missed any work because of it
- defendant’s expert orthopedic surgeon testified that plaintiff’s tendinosis is due to his diabetes not the fracture; however he opined before trial that plaintiff had permanent residual effects from the fracture which were “much worse because of his diabetes that was there before he had the fracture.”
- diabetes affected plaintiff’s father, mother and sister – his father died in his 40’s from a heart attack and his mother passed away at 37 after becoming blind