Concussion From Falling Board - $500,000 Settlement

Special Damages: $182,694.12 (Worker's Compensation Lien)
Amount (specify award or settlement): $500,000.00
Date (of verdict or settlement): July 13, 2001
Attorney for plaintiff(s) and city of office: Kenneth I. Kolpan

Other useful information:

On May 9, 1998, the Plaintiff, a 22 year old single man, was working at his family's restaurant when he went into the alleyway to throw away the garbage. Construction work had been ongoing around and in the alleyway. Construction work had included placing a Homasote board in the bottom of a soffit of one of the walkways, approximately ten feet above the ground in the alleyway. The remaining portion of the alleyway was exposed to the elements.

In an unwitnessed accident, the Plaintiff was allegedly struck by a fallen Homasote board (that had been installed by the two defendants, a general contractor and a subcontractor.) About fifteen to thirty minutes after going into the alleyway, the Plaintiff stumbled into the restaurant. He was wet, dishelved and bloodied. He was holding his head. Plaintiff was first unresponsive to his co-employees; and then became somewhat incoherent. The Plaintiff could not recall what had happened in the alleyway.  Based on Attorney Kolpan’s experience in handling hundreds of brain injury cases, the Plaintiff exhibited indicia of a brain injury (a concussion).  Preserving evidence and gathering witness statements was crucial to the successful resolution of this case.

A co-employee found a Homasote board on the ground in the alleyway near where the garbage was kept. The board was wet, bent and had a remaining screw. This same witness testified that there was a hole in the soffit above where the board was found.

Witnesses testified that this same board had been installed above the alleyway some three months earlier and claimed that the board had been hanging precariously over the alleyway in the months before the incident. Plaintiff's father testified he had told the General Contractor about the board hanging down but nothing was done.

Evidence showed that it had been raining and windy the five days preceding the incident. Plaintiff's construction expert was prepared to testify that the board had been negligently installed contrary to manufacturer's recommendations that it be screwed to the metal substrates and the screws were to be placed at specified intervals.

Suit was brought against the subcontractor and General Contractor alleging the Defendants were negligent in the installation and inspection of the subject board. The Defendant subcontractor denied that anyone in their company installed the board since it would have been outside their contract with the General Contractor. The General Contractor testified that an employee of the subcontractor installed the board at the request of the General Contractor.

Both Defendants disputed the occurrence of the alleged accident and denied liability for the alleged accident. Defendants contested that the Plaintiff had sustained a brain injury.

The matter was at an all-day mediation before John Fitzgerald, Esq., with each Defendant contributing equally to the $500,000 settlement. (Additionally, Attorney Joseph Burke, Plaintiff's worker's compensation attorney, negotiated a reduction of the worker's compensation lien to $75,000.00.)