On February 6, 2014, David Flowers was working at a construction site in Buffalo when he was struck by a load of falling steel rebar causing injuries to his shoulder.

In his ensuing lawsuit, the 34 year old ironworker plaintiff was granted summary judgment on his Labor Law 240(1) claim against the project owner and general contractor.

In the damages trial, the jury awarded plaintiff pain and suffering damages in the sum of $150,000 (all past Рthree  years), past medical expenses (but no future medical expenses) in the sum of $40,205 plus lost earnings damages in the sum of $1,682,750 ($240,516 past, $1,442,234 future Р18 years).

In Flowers v. Harborcenter Development, LLC (4th Dept. 2019), the appellate court vacated the award of damages for lost earnings and ordered that a new trial be held on damages for for past and future lost wages only.

Plaintiff was earning about $64,000 a year as an ironworker before the accident. Immediately following, he was unable to work at all. A year later, in April 2015, he returned to light duty ironwork as a supervisor but only for a couple of hours a day for a week and a half. He was unable to continue and his treating physicians testified he was permanently unable to return to ironwork thereafter. He was, though, cleared for light duty sedentary work.

Three years after the accident, about six weeks prior to trial, plaintiff was hired as an assistant town assessor, a part-time (19.5 hours a week) mostly sedentary position earning $11 an hour, that he was engaged in at the time of trial and that he hoped would become full-time.

Defendants sought a so-called mitigation charge whereby the trial judge would have instructed the jury that plaintiff had a duty to mitigate his earnings loss damages by taking advantage of any reasonable employment opportunity he may have had (such as seeking vocational rehabilitation assistance and/or obtaining a better, higher paying and sooner acquired job). The trial judge declined to make the charge, in part, because plaintiff had in fact obtained a light-duty job and had thereby discharged his obligation to mitigate his earnings losses. The appellate court, though, found that the mitigation charge should have been given because there was a question of whether the part-time job that plaintiff took was a reasonable mitigation of his damages.

Inside Information:

  • The $150,000 pain and suffering award was not challenged on appeal. It was based upon the fact that plaintiff sustained a ligament tear in his shoulder that required two arthroscopic surgeries to repair. He also claimed to be suffering from post-traumatic stress disorder (PTSD).
  • In an October 2016 car loan application, plaintiff falsely stated that he was then employed as an ironworker so that he’d show enough earnings to qualify for the loan. In fact, he was then unemployed.
  • The part-time assessor’s job plaintiff held at the time of trial was arranged for him by his attorney in this lawsuit, a fact the defense contended, unsuccessfully, represented a violation of the rules of professional conduct governing attorneys.