Kelley Kronenberg Partner/Business Unit Leader Dan Mevorach secured a unanimous defense verdict in a Queens County Labor Law § 241(6) trial where the plaintiff claimed injuries requiring five surgeries and valued the case at over $12 million. 

The plaintiff, a 49-year-old cement mixer, claimed he stepped on a pile of bricks covered by plastic while walking to turn on his mixer at a Manhattan construction site in May 2019. He alleged injuries to his neck, back, right shoulder, right knee, and right ankle. Over the next two years, he underwent a cervical fusion, a lumbar fusion, a rotator cuff repair, a knee arthroscopy, and an ankle ligament repair. 

The trial took place in Queens County, a relatively plaintiff-friendly venue for Labor Law cases. The plaintiff’s experts prepared a life care plan projecting over $3 million in future costs, and an accompanying economic projection. 

Before trial, Dan and his team narrowed the case through motion practice. He secured dismissal of the plaintiff’s Labor Law § 240(1) claim, the Labor Law § 200 claim, and the common law negligence claim. He also knocked out all but one of the Labor Law § 241(6) claims. After a trial motion to dismiss knocked out the claim based on Industrial Code § 23-1.7(e)(1) (a broader provision dealing with passageways), Industrial Code § 23-1.7(e)(2) (the tripping hazard provision applicable to working areas), went to the jury. 

The defense focused on credibility and causation. The incident was unwitnessed, and the plaintiff’s account changed over time – the first accounts reported him saying he tripped on a brick, then he testified a pallet of bricks was involved, and the final account at trial was that there were cut bricks under a piece of plastic resting on the walking surface.  

Although not at issue in this phase of the trial, the plaintiff had a prior workplace accident in November 2017 when an air compressor exploded nearby, injuring his neck and back. Medical records from April 2019, weeks before the alleged brick incident, documented complaints of neck, back, shoulder, and knee pain. MRIs from that time showed a lumbar herniation, a pars fracture, and tears in both shoulders. The plaintiff settled that prior case for $75,000.00. 

Dan presented testimony from the non-party site safety manager, who confirmed he walked the project multiple times daily, including the plaintiff’s work area. He never observed bricks creating a tripping hazard. His daily logs from the date of the incident contained no notation of any such condition. Other witnesses inspected the area after the alleged incident and saw nothing unusual. Plaintiff attempted to prove that based on weekly safety meetings debris and material storage were issues that were pervasive on the site, but re-direct established those issues were dealt with or occurred at other locations within the job site. 

Plaintiff’s testimony was inconsistent with his prior videotaped deposition testimony, and Dan elicited new testimony from him that he couldn’t move the plastic covering the bricks because the plastic belonged to his co-worker who was cutting bricks and he couldn’t ask his co-worker to remove the plastic because the co-worker had been sent home before his accident. This brought him into conflict with non-party testimony read to the jury that the co-worker was seen there 30 minutes after the accident cutting bricks. 

The three-day bifurcated trial addressed liability only. The jury found that a technical Industrial Code provision was implicated but concluded the defendants were not negligent. They returned a unanimous defense verdict that same afternoon. 

Critical to this successful outcome was Dan’s experience and knowledge of the New York Labor Law in ensuring the verdict sheet was correct. Plaintiff’s counsel initially convinced the trial Justice Claudia Lanzetta that the jury need only be asked (1) if there was a Code violation, and (2) if that violation was a substantial factor in bringing about the injury. Dan cited cases and the PJI text to show that Labor Law 241(6) is a negligence per se statute, and therefore the negligence question was essential to a fair verdict, which ultimately resulted in Justice Lanzetta, reversing herself, and allowing the defense to prevail on the negligence question. 

This verdict reflects Dan’s experience in New York Labor Law defense and his ability to break down complex cases for a jury. For owners, contractors, and construction managers facing high-exposure claims, having trial-tested counsel makes the difference. 

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