Grandelli & Eskenasi, recently settled a construction accident case for $700,000.00, without anyone ever discovering what actually caused the accident to occur. The known facts are straightforward: the plaintiff was working alongside a hoist located on a construction site, when the hoist suddenly dropped on to the plaintiff’s foot, causing him to lose his big toe. However, despite inspections by OSHA and the New York City Department of Buildings, and an inspection by our construction safety expert, neither we nor the defendants could find definitive proof as to what caused the hoist to drop. Despite having no concrete proof of what caused the hoist to drop, we were able to successfully negotiate a settlement in the case by using a twist on the legal theory of res ipsa loquitur.
Res ipsa loquitur, latin for “the thing speaks for itself“, is a legal theory that can be used where the cause of an accident is unknown, but it is the type of accident that would not occur without negligence. Using res ipsa loquitur can be difficult though as it requires a plaintiff to prove the following: (1) the event must be of a kind that ordinarily does not occur in absence of someone’s negligence; (2) it must be caused by agency or instrumentality within exclusive control of defendant; and (3) it must not have been due to any voluntary action or contribution on part of plaintiff. See Kambat v St. Francis Hosp., 89 NY2d 489 (1997).
Under the traditional frame work of the theory, res ipsa would not have applied to this case, as the plaintiff was working with a co-worker alongside the hoist at the time. As a result, we could not establish that the defendant, the general contractor at the construction site, had “exclusive control” of the hoist. Without res ipsa loquitur and no definitive proof as to how the accident occurred, the case was in serious jeopardy. We were able to salvage the case and obtain a substantial award for our client though by using the same type of reasoning that underlies res ipsa loquitur and apply it to Labor Law Section 240(1), which holds owners and contractors strictly liable when hoists are not “constructed, placed and operated as to give proper protection to a person so employed.”
To do so, we relied on Fitzsimmons v City of New York, 37 AD3d 655, 656 (2nd Dept 2007), where a crane similarly fell on a plaintiff without clear proof as to the cause of the fall and the contractor was held liable anyway. The Appellate Division noted in Fitzsimmons that a “hoist that falls and causes injury to a plaintiff gives rise to liability under Labor Law § 240 (1)” and that, as a result, the plaintiff had established a prima facie case of liability against the defendant.
With Fitzsimmons as precedent, we were able to successfully argue, that similar to a crane falling, a hoist that was properly constructed would not suddenly drop. By doing so, we were able to force the $700,000.00 settlement without discovering the cause of the accident or having to prove all the elements of res ipsa loquitur.
As this case highlights, it can be difficult to establish liability in a construction accident case without experienced construction accident lawyers. The Law Offices of Louis Grandelli focuses on these type of accidents and have earned millions of dollars for our clients by holding contractors and owners responsible for their negligence. If you, or someone you love, has been injured in a construction accident, please do not hesitate to contact us.
