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Failure To Remove Metal Height Restrictors After Demolition Of Parking Garage


This construction site accident occurred during renovations of a shopping center. The defendants did not dismantle the height restrictor bars that were situated on two poles when the parking garage was demolished. The plaintiff contended that as the decedent was attempting to move a load of bricks to another portion of the job site, he was required to maneuver beyond a height restrictor. The plaintiff maintained that in order to do so, he was forced to lower the boom of the forklift. The plaintiff contended that his vision was thereby impaired and that a forklift wheel struck one of the height restrictor poles, resulting in the forklift flipping and landing on the decedent, killing him instantly. The decedent left a wife and two young children.

The plaintiff’s expert engineer would have contended that the failure to remove the height restrictors was was improper and that the operator’s ability to see the pole would be partially obscured by the boom. The plaintiff would have maintained that there appeared to be no reason for leaving it up. The plaintiff’ expert would have further maintained that when maneuvering under such conditions, a spotter should be used.

The plaintiff would have maintained that the project was probably understaffed, resulting in the absence of such a spotter.

The defendants would have denied that the plaintiff’s claims should be accepted and would have pointed out that no workers, including the decedent, had made prior complaints about the condition. The defendants would have also contended that the decedent was an experienced forklift operator and the defendants would have argued that his negligence was the sole cause of the incident.

The defendant would also have endeavored to introduce evidence that cocaine was found in the decedent’s system. The plaintiff would have argued that such evidence only established consumption within 48 hours and not that the decedent was under the influence of the drug at the time of the accident and that the prejudice of the evidence would far outweigh any probative value.

The plaintiff would have introduced evidence of future lost wages and benefits that approximated $6,250,000. The plaintiff would have also made a claim for the loss of parental nurture and guidance and would have argued that the jury could use their common knowledge to evaluate this aspect.

The case settled before any judicial hearings regarding the admissibility of the issue of cocaine in the decedent’s system for $971,800, including $825,000 cash and a waiver of the $146,000 worker’s compensation lien.

Estate of J.B. v. GII Construction Co., et al. Index no. 25126/00; 10-08.
Attorney for plaintiff: Charles A. Cerussi of Cerussi & Gunn in Garden City, NY and Shrewsbury, NJ.

The plaintiff would have argued that since the finding of cocaine in the decedent’s system showed only that he had ingested the drug sometime in the past 48 hours, the evidence could not establish that he was under the influence of it at the time of the incident. The plaintiff argued that in view of the highly prejudicial nature of the evidence and the very limited probative value, the evidence clearly should not be admissible. It would be noted that the case resolved before and judicial determination was made on this question. Additionally even if the plaintiff’s arguments that the evidence should not be admitted were accepted, the plaintiff would have nonetheless limited the plaintiff’s economists testimony to issues relating to lost income and various benefits, preferring to permit the loss of parental nurture and guidance issues to be discussed by lay witnesses such as family members, providing a more personal description than would have been forthcoming from expert economic testimony.