On March 26, 2010, Eladio Hernandez was hired for the day to level out the driveways and gas pump lanes at a gas station in South Ozone Park.
There was a large high pile of dirt that was to be removed and the 51 year old Mr. Hernandez was instructed to shovel it away while standing in a plastic container mounted on a forklift operated by a gas station employee. As the driver was backing up the forklift and lowering the fork, Hernandez was thrust toward the ground nine feet below and sustained serious injuries as he grabbed onto the forklift to steady himself and his hand was crushed when it became caught for 45 seconds in a moving part of the machine’s mechanism.
In the ensuing lawsuit against the premises lessor and the gas pumps operator under Labor Law Section 200, a Queens County jury found the defendants were fully at fault and awarded plaintiff pain and suffering damages in the sum of $875,000 ($200,000 past – three years, $675,000 future – 24 years).
In Hernandez v. Pappco Holding Co., Ltd. (2d Dept. 2016), both the liability and damages determinations have been affirmed.
The court’s decision did not mention the injuries sustained. Here are the injury details:
- crush-burst type fractures of the middle phalanges, index, middle and ring fingers of his left (dominant) hand
- casted and splinted for five days before surgery
- percutaneous pinning surgery to repair the fractures followed by pin removal surgery one month later
- occupational/hand therapy three times a week for nine months
- permanent significantly limited range of motion with twisted, deformed and painful fingers, unable to make a fist, unable to pick up small items and unable to return to construction work
- 31% total disability impairment to his hand (according to plaintiff’s expert hand surgeon, who was the only testifying physician)
- There was no loss of earnings claim; plaintiff returned to work such as light painting or cleaning jobs that did not require any strength.
- In closing arguments, plaintiff’s attorney asked the jury to award $675,000 for past pain and suffering damages plus $1,100,000 for the future.
- The defendants argued that the jury award should be reduced because plaintiff returned to some work and asserted no loss of earnings claim, claimed only partial loss of use of his hand, his surgery was “unremarkable,” his disfigurement was “mild”and his fingers “healed with some residual effects but without malunion or nonunion.” They also argued that the amounts requested by plaintiff’s counsel were impermissible and unreasonably excessive (a rarely used contention that was rejected by the court).