Employment Law Daily Home Depot subcontractor liable for at least $6.59M for worker’s fall from ladder and electric shock
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Monday, April 9, 2018

Home Depot subcontractor liable for at least $6.59M for worker’s fall from ladder and electric shock

By Lorene D. Park, J.D.

After finding that Home Depot was strictly liable under New York law, but could seek indemnity from its subcontractor for grave injuries sustained by the subcontractor’s employee when he fell from a ladder and was electrocuted, a federal district court in New York granted in part the worker’s motion for summary judgment on his economic damages. Given that the subcontractor failed to offer any evidence to refute calculations by the worker’s experts, the court awarded $6.59 million for his projected life care costs. However, an award of surgical costs was not yet supported by the record because the expert report nowhere said the projected surgeries would actually be necessary, so summary judgment was denied in that respect (Rivera v. Home Depot USA, Inc., April 3, 2018, Forrest, K.).

The plaintiff was injured when he was electrocuted after falling from a ladder during the course of his employment in New York. At issue in this lawsuit was whether and to what extent Home Depot and Bryan’s Home Improvement Corp. (BHIC) were liable for his injuries. Home Depot was the general contractor at the construction site and BHIC was the subcontractor and the plaintiff’s direct employer. The plaintiff sued Home Depot under New York law and Home Depot filed a third-party complaint against BHIC seeking indemnification.

“Grave injury” under state law. In a February 27, 2018 order, the court denied BHIC’s motion for summary judgment seeking a declaration that the plaintiff did not suffer a “grave injury” as that term is defined by New York law. Quickly getting to the point, the court explained that the plaintiff provided evidence and BHIC has not disputed at this point that he suffered at least the following injuries due to his fall: “weakness and paralysis of left hand”; “neurocognitive dysfunction” and “traumatic brain injury” as a result of electric shock exposure; “diffuse cortical slowing of brain activity”; and “100% visual disability of the left eye which is permanent.” This created a triable issue on whether he suffered a “grave injury.” In a subsequent in-person conference, the court granted Home Depot’s oral motion, ruling that the employee suffered a “grave injury” under the state workers’ compensation law.

Home Depot liable under “Scaffold Law.” On February 28, the granted partial summary judgment for the plaintiff, finding that Home Depot violated New York Labor Law §§ 240(1) and 241(6), referred to by the parties as the “Scaffold Law.” The Scaffold Law requires general contractors to comply with applicable safety regulations, and imposes strict liability when the failure to adequately protect workers in elevated worksites results in injury. Here, the plaintiff claimed Home Depot violated regulations requiring specific safety measures when work is performed from ladder rungs, including securing the ladder against slipping, posting warnings for work involving electric power, and protecting against electric shock for work in proximity to an electrical power circuit. These obligations, noted the court, are non-delegable, so the plaintiff did not have to demonstrate that Home Depot exercised any control or supervision over the worksite to establish liability.

Here, the evidence indicated the plaintiff was climbing a ladder that shifted and caused him to fall, with the ladder he was carrying thereby coming into contact with electrical wires. That was enough to show the shifting/unsecured ladder was the proximate cause of his injuries and to impose strict liability on Home Depot.

BHIC’s liability. During an in-person conference held March 6, the court granted Home Depot’s motion for contractual and common-law indemnification from BHIC. Based on these prior rulings, it was established that BHIC was liable for provable economic and non-economic damages resulting from the plaintiff’s injury.

Economic damages. The plaintiff subsequently moved for summary judgment on economic damages, submitting two expert reports. One expert relied on medical records and reports, an interview of the plaintiff, and recommendations by his treating physician before concluding that the plaintiff’s future medical and related costs (Life Care Costs) would fall between $5,941,518 and $7,078,306. This included home care, prescriptions, physical therapy, mobility aids, and other needs for independent living. The expert also estimated potential future surgeries would cost $713,776 and that the plaintiff sustained a total loss of earnings from the time of the incident over the remainder of his work life expectancy. The second expert used the first expert’s figures to calculate the present value of the plaintiff’s future medical and related needs.

Didn’t challenge experts. According to the plaintiff, because BHIC did not introduce any affirmative evidence to refute his expert reports, he was entitled to summary judgment on all economic damages. For its part, BHIC submitted an opposition of less than two pages arguing that the first expert’s report was not supported by sufficient medical evidence and that, in any event, the quantum of economic damages must be decided by a jury. Disagreeing, the court first noted that, for unknown reasons, BHIC did not move to exclude either expert report, so there was no basis to exclude them—they were “effectively uncontested” for purposes of this motion.

The court also noted that BHIC’s motion to strike the experts’ affidavits was “entirely unhelpful to its case” because the court did not need to rely on the affidavits, which were signed after the expert discovery period closed, to conclude the reports were admissible and uncontested. And while BHIC argued that a jury should hear the testimony and weigh the experts’ credibility, it failed to offer even one potential trial argument to contradict the claimed damages and did not introduce any evidence to contradict the expert calculations. It was not the court’s job to guess what BHIC might argue at trial just to help it defeat summary judgment, explained the court.

For these reasons, the court granted the plaintiff’s motion in part, awarding $6,593,495 for Life Care Costs. However, Surgical Costs were unsupported at this point because the expert report nowhere actually stated the plaintiff would need the referenced surgeries.

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