On July 16, 2007, the plaintiff was injured while he attempted to retrieve a jackhammer from a tool container in an equipment yard. A back hoe was being operated adjacent to the tool container. The backhoe was idling, and had not been in operation since the plaintiff entered the equipment yard. As he approached the took container, the plaintiff made eye contact with the spotter for the backhoe. Receiving no signals from the spotter, the plaintiff proceeded. After the plaintiff opened the door to the tool container, the backhoe swung around and struck the steel door, which then struck the plaintiff in the head, causing a substantial laceration.
There were factual disputes about how many spotters were working with the backhoe. An investigation conducted by the general contractor suggested that at the time of the accident, there was only one spotter working with the backhoe, and he was on a break. The subcontractor operating the backhoe too the position that there were two spotters working with the backhoe.
During discovery, we learned that the subcontractor operating the backhoe requested that the general contractor move all equipment of other subcontractors from the area that it was doing excavation work, but that this was never done. Additionally, we learned that the foremen for the excavator noted several times in his daily log entries that there were too many workers allowed to walk in the area where excavation was going on. Finally, the general contractor’s own safety manual required temporary barricades to be erected when unguarded heavy equipment was being operated.
The case settled before jury selection after it was assigned to a judge for trial in Superior Court, Bergen County.