On June 3, 2005 Carlos Cano fell to the ground from the fourth rung of an unsecured ladder he was using to caulk the exterior walls of a gas station construction site in Cortlandt Manor.
Mr. Cano, then 33 years old, had been employed by the project’s general contractor which specialized in the construction of gas stations and provided the ladder. He sued the owner of the site under the provisions of Labor Law Sections 240(1) and 241(6). The Suffolk County jurors returned a verdict finding that the owner was at fault for violating Section 241(6) and they awarded plaintiff pain and suffering damages in the sum of $475,000 ($100,000 past – nine years, $375,000 future – 31 years).
In Cano v. Mid-Valley Oil Co., Inc. (2d Dept. 2017), the pain and suffering damages award was increased to $3,500,000 ($1,000,000 past, $2,500,000 future).
As indicated in the court’s decision, plaintiff sustained significant wrist and back injuries requiring several surgeries. Here are the injury details:
- severe, comminuted intra-articular fracture with external fixation surgery
- implantation of pins, screws and K-wire to stabilize the fracture; surgery to remove the hardware
- permanent loss of range of motion, post-traumatic arthritis
- future need for either wrist replacement or fusion surgery
- compression fracture of thoracic spine at T10-11 resulting in arthritis
- disc herniation requiring fusion and decompression surgery at L5-S1 with insertion of pedicle screws and side bone grafting
- non-union and failed back syndrome requiring fusion surgery at L4-S1
- permanent loss of range of motion and progressively worsening pain
- future need for L3-4 revision surgery
Plaintiff claimed he was permanently unable to return to work. He had been earning $600 per week (cash off-the-books) and his attorney asked the jury to award past and future lost earnings in the sum of $1,720,000; the jurors, however, awarded only $310,000.
Plaintiff also claimed entitlement to awards for past and future medical expenses; the jurors awarded $850,000 but the appellate court ordered a reduction to $500,000.
One of the main issues throughout the litigation was plaintiff’s status as a so-called undocumented immigrant or illegal alien. He’d come to the United States from Colombia in 2001 and overstayed his visa while working to send money back to his wife and five children back home. The trial judge allowed defendants to present evidence as to plaintiff’s immigration status; the appellate court, though, held that summary judgment as to liability should have been granted before trial in plaintiff’s favor despite the immigration issues (and the fact that plaintiff failed to pay income taxes).
- Defendants did not present any evidence at trial. Plaintiff offered the testimony of a specialist in hand surgery (who also had experience in back surgery) and a vocational rehabilitation expert.
- Plaintiff admitted that he lied about his identity at the hospital in order to obtain health insurance coverage.
- In closing arguments, plaintiff’s attorney requested a pain and suffering award of $16,500,000. Defense counsel argued that plaintiff’s back pain and disabilities were related to a congenital deformity, suggested he was operated on for purposes of litigation and stated plaintiff should be awarded only what is “fair and reasonable.”