Foreman falls after striking head on low beam: FELA liability: Violation of OSHA regulations: Paralysis: Verdict

Law Reporter, Feb 2004

Cruz v. Long Island R.R., N.Y., Queens County Sup. Ct., No. 16038-2000, june 27, 2003.

Cruz, 58, a foreman with the Long Island Railroad, was instructed to inspect a transformer. The top of the transformer stood about nine feet above the ground. The railroad had installed a covering made of fencing-and supported by an I-beam set about five feet above the top of the transformer-to protect the open top of the transformer from birds and debris.

After ascending to the top of the transformer, Cruz walked in a crouched position under the fencing to the place where he performed the inspection. he worked for about ten minutes and then stood to back out from under the fence covering. Cruz then struck his head on the I-beam. he became dizzy, and, stumbling over protruding parts, fell off the transformer to the concrete floor below.

Cruz sustained a burst fracture at L-1 that left him paralyzed from the waist down. he underwent a fusion surgery to insert stabilizing rods into his spine between T-9 and L-3. he suffers from incontinence and impotence. he requires a home health care aide for eight hours per day, and will require increased care as he ages. His past medical expenses were $45,200, and his future medical expenses are estimated at $1.39 million.

Cruz is unable to return to work. His past and future lost income totals about $294,300.

Cruz brought suit under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 et seq. Plaintiff alleged defendant had violated U.S. Occupational Safety and Health Administration regulations requiring that equipment posing a striking hazard be marked with safety colors, and requiring employers to provide fall protection systems. Defendant contended that plaintiff had a residual blood alcohol content of between .05 percent and .06 percent.

A jury found defendant 80 percent negligent and plaintiff 20 percent at fault. The court granted plaintiff's motion to set aside the verdict and entered an order reflecting 100 percent liability for defendant. The jury then awarded plaintiff about $29.73 million.

Defendant's oral motion to set aside the verdict was denied. Defendant has filed an appeal.

Plaintiff's experts were Richard Twomey, safety engineering, East Lyme, Conn.; Andrew G. Verilli, economics, Kintersville, Pa.; Richard J. Sinister, life care planning, New York, N.Y.; Thomas N. Bryce, rehabilitation, New York, N.Y.; and Thomas Mauri, orthopedic surgery, Great Neck, N.Y.

Defendant's toxicology expert was Edward Briglia, New York, N.Y.

Plaintiff's Counsel

*Emil R. DiNardo, Buffalo, N.Y.

*Daniel R. Metschl, Buffalo, N.Y.