$1,204,087 for a laborer that lost portions of four toes when a co-worker lowered a blade on his foot during excavation work

Attorneys for Block O’Toole & Murphy, LLP
Stephen J. Murphy & S. Joseph Donahue

AMOUNT OF VERDICT OR SETTLEMENT
$1,204,087.24

FACTS AND ALLEGATIONS
Plaintiff, a native of El Salvador, came to the United States in 2003. He left behind his wife and infant son. Since arriving he has worked construction jobs, predominantly in eastern Long Island where he resides. Plaintiff was employed by Hampton Drainage & Pavement at the time of his accident. He was not a citizen of this country. He had been working for Hampton for nearly 2 years, starting in April 2004, doing plumbing, trenching and excavation work.

On the morning of the accident, February 16, 2006, Plaintiff was in one of two groups that were doing excavation, trenching and installation of sewer pipe work at Avalon Pines, an ongoing project that would result in a 450 unit residential housing complex in Suffolk County. To complete their work, they were using a Kubota M7030 Series Tractor, a vehicle that the workers had often used in the past. This particular machine often malfunctioned leading up to the date of the accident. Usually the problems with the machine had to do with the tread and were directly related to the weather. The strap connected to the tread would become dislodged when there was an abundance of rain, snow or dirt around it.

Rene, a mechanic for the company where Plaintiff worked, fixed the machine a few times in the past. However when the machine malfunctioned the laborers would have to stop work. Rene, who was at a different site, would take an hour to 90 minutes to arrive and fix it. This was not efficient so, the Plaintiff claimed, Rene taught him and a few others how to repair the machine. Plaintiff sought to corroborate this contention by showing that Rene left some tools there to assist them in future repair work in the event the machine malfunctioned. The defendants vehemently denied this.

On the date in question, Plaintiff’s group was taking their morning coffee break. Plaintiff noticed co-worker Santos Abigail Fuentes, from the another group of workers from Hampton Drainage, struggling with his machine, also a Kubota M7030 Series Tractor. Plaintiff went to help. He asked Santos to get out of the machine. Santos exited as Plaintiff began trying to remedy the situation.

The Kubota M7030 Series Tractor had a bucket as well as a plow. The plow was attached to the front of the vehicle below the bucket arm. The bucket itself can swing all the way around but the plow is stationary. Plaintiff states that the bucket arm was down and firmly against the ground but the plow itself was approximately 12 inches off the ground. The plaintiff states that in order for him to work on the tread he had to position his body in front of the actual plow so that he was facing the plow and the tread. To do this, Plaintiff claimed his feet had to actually be positioned under the plow. Defendant Hampton said it was reckless and in direct violation of company policy.

When the plaintiff began working on the machine the machine was on and the bucket was firmly against the ground with the plow being approximately 12 inches off the ground. The plaintiff states that the bucket was pushed firmly against the ground so that the front portion of the tread was off the ground. At the time of the Plaintiff’s injury there was 2 workers Sylvio as well as Jovino who were putting steel bars underneath the tread to help lift the tread off the ground to take the pressure off the tread. The Plaintiff suggested that the co-workers were doing this so that the plaintiff could make the repairs and that they were willingly helping him. Defendants argued and these witnesses testified that the Plaintiff was recalcitrant and ordered them to help despite their protestations. They assisted Plaintiff, according to the defendants, against their will.

At the time of the accident, the plaintiff was attempting to put a nylon material inside the tread to prevent the tread from slipping.

The plaintiff was working on the machine for a period of time when Santos reentered the cab due to the bitter cold temperatures that day. Despite warnings to the contrary from several co-workers, Santos turned the machine on. While Santos was in the vehicle, Carlos, a co-worker, started screaming at him in spanish after the vehicle was turned on.

Apparently Mr. Santos was confused and mistook one of the buttons in the cab of the machine, accidentally hitting an incorrect button, lowering the plow and blade on Mr. Membreno’s foot . Mr. Membreno yelled for Santos to raise it. Santos, still seemingly confused, lowered it further. The blade cut off 4 toes and small portions of Ps foot. Mr. Membreno leaped once the machine was lifted and fell to the ground.

Plaintiff argued that the workers were instructed to fix the machine rather than call the company mechanic Rene because it would take him too long for Rene to arrive at the work site and fix the machine. Plaintiff claimed that when a machine was not properly working that an entire work group would be forced to sit around. Defendant countered that only a mechanic was authorized to repair a machine and that plaintiff violated company rules and common sense in trying to fix the machine. Defendant added that Plaintiff was never taught how to repair any machine by their mechanic Rene.

He was flown by helicopter to Stony Brook University Hospital. He treated there for 5 days. Dr. James Nicholson, a surgeon at Stony Brook, tried to save Plaintiff’s toes but was unsuccessful. He followed with Dr. Nicholson until July 2006 when he indicated that Plaintiff had reached maximum medical improvement for his toes and would live with some discomfort for the rest of his life. Despite this, Plaintiff continued to have pain in his toes. His foot is rectangular in shape now.

After ceasing treatment with Dr. Nicholson, Plaintiff did physical therapy at a few facilities, including Advanced Sports PT and Patchogue Medical & Rehabilitation, P.C. and was fitted with a prosthetic boot by prosthetic expert Dr. Mark Goldberg. This somewhat alleviated the pain and allowed him to ambulate and conduct his activities and daily life without the grueling pain.

Plaintiff argued that the defendant owner violated New York State Labor Law §241(6), relying on two code provisions.

1-23-9.5(c) Excavating Machines . . . when not in use the blade or dipper bucket must be on the ground or grade.

2-23-9.2 . . . any servicing or repair of power operated equipment shall be performed only while such equipment is at rest.

Plaintiff brought suit against the property owner Avalon.

Avalon brought a third-party action against Plaintiffs employer Hampton Drainage.

The injury seemed likely to be classified as a “grave injury” and, thus, triggered a contractual agreement between the “owner” and the “employer” whereby they would be equally responsible for Plaintiff’s bodily injury claim.