Negligence- Fall at Construction Site

Benjamin R Zimmermann

Practice Area:Personal Injury

Outcome:Verdict $2.5 million

Description:The plaintiff, a 45-year-old construction worker, was refinishing the concrete floor of a retail space at the Natick Mall. While walking down a service corridor at the mall, he fell from an unguarded second-floor opening in an exterior wall of the building. The opening from which the plaintiff fell was part of an ongoing construction project being completed by the defendant Dimeo at the mall. The opening was being used to discard construction debris and to receive construction materials, and opened to a dumpster on the ground below. As a result of the fall, the plaintiff landed in the dumpster below and suffered severe fractures of both feet and ankles which his surgeon determined would not benefit from surgical repair. The plaintiff brought claims against the defendant, alleging that it failed to secure the opening and left a known fall hazard accessible to the public and workers in the mall, including the plaintiff. The defendant agreed that the opening should not have been left unguarded, and denied ever leaving it unsecured. The jury was shown photographs taken within a day of the accident showing the opening left open and unsecured. The defendant also claimed that the plaintiff was trespassing, and that the plaintiff was at fault for approaching the opening. The plaintiff's medical expenses were $58,000. His injuries kept him out of work for approximately one year, although the plaintiff presented evidence that he had tried to return sooner. While there was no claim for lost wages (plaintiff owned his own business and kept it running while injured), there was a claim for past and future earning capacity. The plaintiff’s treating physician testified that the plaintiff was left with significant and permanent pain and limitations, and that at least one of his ankles would likely require surgical fusion in the future. The case was tried to a jury the week of March 14, 2011 in Middlesex Superior Court. After a day and a half of deliberations, the jury found that the plaintiff was not a trespasser, that the defendant’s negligence caused the accident, and awarded the plaintiff $2.5 million in damages. The damages were reduced by 26%, the portion of fault the jury attributed to the plaintiff. With interest, judgment entered in excess of $2,300,000. Defendant’s Motion for JNOV or New Trial was denied.

617-542-1000