Albert (not his real name) was injured in 2006 when he was working at a one-family home owned by Mr. L in the Hamptons. Albert was trying to “rip” blocks of lumber that were essentially scraps of two-by- six boards into one-by-six blocks to use to shim the rough opening for a new, pre-hung door to be installed. He was using a table saw that had approximately four inches of exposed blade. He successfully passed the piece through once but had to flip it to cut a corresponding slice on the opposite side of the two-by-six. Predictably, the block jammed in the blade and was spun from the table with the workers hand drawn into the blade. Although the saw had a guard, due to the 5 ½ inches height of the piece, it was not able to cover the blade.
Albert had worked as a helper doing repairs and light construction with Mr. L. at an apartment building he owned in Queens, and on infrequent occasion had done yard work at Mr. L’s personal residence. However on this day Mr. L. claimed Albert was working as a “volunteer” since a relative of Mr. L’s was what he portrayed as convalescing and Mr. L. had planned to allow the relative to use the home in a humanitarian gesture. As a volunteer Albert would not have the protection of Workers’ Compensation Law § 11 and his comparative negligence could have diminished his recovery significantly.
Mr. L testified he had given Albert adequate instruction in safe use of a table saw along with proper equipment including a plastic ‘feather’ – a long piece used to push a piece of wood through the saw to avoid having the worker’s hand near the moving blade.
Safety Expert Peter Sarich opined the employer failed to comply with various safety mandates called for in the New York State Labor Law and under Federal regulations.
Since Workers’ Compensation Law § 11 allows an injured worker to bring a claim directly against an employer if the latter fails to obtain required workers’ compensation coverage, the plaintiff commenced suit directly against what was concededly his employer. Further, while it was acknowledged his own conduct was very dangerous, plaintiff argued the employer did not have the right to use the employee’s comparative negligence as a defense under the law where he has failed to obtain workers’ compensation coverage.
Plaintiff moved for summary judgment, and although the Court found there was a question of fact for a jury, the employer’s asserted defense of the worked being a “volunteer for a day” was determined on a motion in favor of the worker. The parties prepared the case for trial.
Plaintiff had approximately $65,000.00 of medical liens on the file. Prior to jury selection the parties settled for $559,900.00 plus the previously paid $5,000.00 from the “med-pay” portion of the policy. In a gesture of magnanimous fairness, plaintiff credited the defendant with $100.00 for interest that had been earned on the med-pay coverage that had been placed in an interest bearing account for the client during the pendency of the action.
Keegan & Keegan, Ross & Rosner, LLP
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