Last month the Appellate Court said that a Suffolk County jury had unfairly found that a 33 year old construction worker was 25% to blame for his accident and inadequately compensated him with only $475,000 for past and future pain and suffering. The plaintiff had fallen from an unsecured ladder attributable to uneven and unsettled dirt on the ground. The Appellate Court found that the owner of the property had violated Labor Law 240 (1) in failing to provide plaintiff with scaffolding and/or an aerial lift as he requested, instead of the ladder, due to the uneven dirt on the ground. Therefore, it found that any comparative negligence of the plaintiff could not be used to diminish his recovery.

The plaintiff suffered serious injuries to his dominant hand, wrist and lower back requiring: a surgery to repair the comminuted fracture of his wrist leaving reduced range of motion; two lumbar spinal fusion surgeries which included a laminectomy and foraminotomy. The Court observed that the plaintiff will require pain medications for the rest of his life, can never return to work nor resume sports with his daughter and thus increased the jury award for past pain and suffering from $100,000 to $1 million and increased the jury award of $375,000 for future pain and suffering to $2.5 million.

Noteworthy, was the approval of the Trial Judge's decision to prohibit the insurance company's defense attorney's attempt to inform the jury that the plaintiff was "an undocumented immigrant who failed to pay taxes and had used a co-worker's name to obtain health insurance immediately following the accident...." The Appellate Court stated that these facts did "not present an issue relating to the plaintiff's credibility as to any material fact." Cano v Mid-Valley Oil Company