On December 10, 2007, at approximately 8:30 am, the plaintiff, a resident of Florham Park, New Jersey, was working as an iron worker at a construction project known as the “New York Jets Training Facility.” He was assigned the task of disassembling guy wires. On that day it was overcast and cold. There was some decking located over the concrete slab on which the plaintiff was working, but the building was still exposed to the elements in some areas. At approximately 8:30 am, the plaintiff was walking to the next column where he was to disassemble the guy wire. He did not see ice or water on the concrete slab where he was working. Nevertheless, he stepped into a spot of muddy water that contained ice, and his feet slipped out from under him, causing him to land on his buttocks. The plaintiff injured his lower back in the fall. He ultimately underwent two spinal surgeries and he was eventually declared completely disabled by Social Security. Only 47-years-old, the plaintiff could no longer work.
It was undisputed in the case that the General Contractor had an obligation to remove water accumulation and ice from the area where the ironworkers were erecting steel. The defense took the position that the accident was the plaintiff’s fault, because he failed to advise the general contractor of the ice hazard the morning of the accident.
Once a jury was empanelled, the trial went very quickly. Although the defendant retained a medical expert to argue that the plaintiff’s injuries were unrelated to the accident, after I deposed that doctor, the general contractor elected not to call him as an expert at the time of trial.
The defense did call an employability expert who testified that the plaintiff could have found gainful employment in a different field. Nevertheless, because the defense did not call a medical expert, her testimony had no foundation. Despite this, instead of barring her testimony, I allowed her to take the stand because her opinions were so suspect that I believed after cross-examination, she would do more harm to the defense’s case than good.
In the end, with no possibility of future employment, the plaintiff elected to settle the case because he calculated that his net settlement recovery combined with his retirement benefits would be sufficient to allow him to live comfortably in Florida, and he was not willing to risk losing that opportunity for the possibility of making out better with a jury verdict. Although I would have liked the case to go to the jury, it is always the client’s decision about whether to resolve a case.
Following the settlement, the trial judge allowed both attorneys to speak with the jury. As predicted, they found the defense’s employability expert incredible, and based on our conversation with the jury, I concluded that if the case went to verdict, we would have secured substantially more than what the plaintiff settled for.
I tried the case in Morris County, New Jersey with my partner, Amos Gern.