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Morgan Edwards v. C & D Unlimited, Inc. and Antorino Sewer and Drain April 7, 2003 Suffolk Supreme JUSTICE: Melvyn Tanenbaum ATTORNEYS: I. Bryce Moses of Eisenberg, Margolis, Friedman & Moses, Manhattan, for plaintiff; Wade T. Dempsey of Hammill, O’Brien, Croutier, Dempsey & Pender, Smithtown, for defense. FACTS: Morgan Edwards, 40, was supervising the installation of concrete drainage rings at a construction site in Huntington. The rings were to be placed far below ground level and Antorino Sewer and Drain Inc. was contracted to dig holes. After the first hole was created, Mr. Edwards attempted to determine if the hole was of sufficient depth. He claimed that he walked to within three feet of the hole’s edge, and attempted to toss the weighted end of a tape measure into the hole. Testimony indicated that the ground collapsed beneath his feet, causing him to fall to the bottom of the 35-foot hole. Mr. Edwards added that he had not been provided with a safety belt or a lifeline, and that there were no guardrails surrounding the excavation. Mr. Edwards suffers from paraplegia at and below the T9 level. Mr. Edwards brought a Labor Law action against C & D Unlimited Inc., which owned the property. He also brought a common-law negligence action against Antorino Sewer and Drain. The latter action was dismissed by the court, which found that Antorino Sewer and Drain did not direct or control the digging of the hole. The decision was affirmed on appeal. Mr. Edwards made a motion for summary judgment against C & D Unlimited Inc., under Labor Law §240(1). The motion was denied because the court found that the incident did not involve an elevation-related risk. Mr. Edwards then made a motion for summary judgment pursuant to Labor Law §241(6). He alleged violations of the industrial code. The trial court granted summary judgment, because it found no evidence that Mr. Edwards was comparatively negligent. On appeal, the Second Department reversed, finding issues of fact regarding Mr. Edwards’ negligence. At trial, the defense argued that Mr. Edwards was a seasoned contractor with his own construction business, and that he had years of experience installing drainage rings. C & D Unlimited’s president testified that he had no knowledge of drainage-ring installation, and that Mr. Edwards was hired to perform that specific function. He contended that Mr. Edwards was standing at the edge of the hole — not three feet away from it — when he attempted to perform the depth measurement. An eyewitness corroborated this point. The defendant also contended that Mr. Edwards was not told to measure the hole, and that there was no apparent reason or need for him to measure its depth. The jury found that C & D Unlimited was responsible for the accident. It also found that Mr. Edwards was negligent, but it determined that his negligence was not the proximate cause of his injuries. Injuries: Mr. Edwards suffered a burst fracture at T9. He also sustained fractures to the left transverse process from T8 through T11. He underwent fracture-decompression surgery, and also underwent a spinal fusion from T6 through L2. Mr. Edwards is incontinent and must perform self-catheterizations. He is assisted by a home health aide for a few hours every day. He treats with a physiatrist periodically. C & D Unlimited would have disputed Mr. Edwards’ claimed need for future full-time care, as well as the claimed cost of such care. The defense also would have contended that Mr. Edwards’ claimed future lost earnings are mitigated by the fact that he is receiving a firefighter’s pension. John Caputo Jr. v. Good Samaritan Hospital Medical Center and Susan Egner-Whalen, P.A. Feb. 26 Suffolk Supreme JUSTICE: Robert A. Lifson ATTORNEYS: Richard M. Bronstein, Central Islip, for plaintiff; Ann D. Schattner of Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, Hauppauge, for defense. FACTS: John Caputo, a butcher with a history of severe diabetes, went to the emergency room of Good Samaritan Hospital and Medical Center in West Islip. Mr. Caputo had pain, swelling and a limited range of motion in his right wrist and hand. He was seen by a physician’s assistant, Susan Egner-Whalen. Mr. Caputo claimed that Ms. Egner-Whalen failed to consult a doctor or have him examined by a doctor; that she failed to perform any proper diagnostic tests, including blood tests; that she ignored the obvious symptoms of an infection; and that she released him without prescribing antibiotics. After two days of increasing swelling and pain, Mr. Caputo went to his family doctor, who referred him to an orthopedist. He was immediately hospitalized and diagnosed with a severe strep B staph infection of the right hand. Mr. Caputo contended that the infection should have been diagnosed two days earlier. Injuries: Mr. Caputo has undergone several surgeries and 10 months of unemployment. He claimed that he continues to suffer from contracture of the small finger and ring finger, and that he has limited range of motion of the fingers, hand and wrist. He also claimed to suffer from tenosynovitis. VerdictSearch The cases that appear here are derived from the New York Jury Verdict Reporter and VerdictSearch, affiliates of the New York Law Journal. For verdict and settlement research, or to report a case, call 800-832-1900 or go to VerdictSearch.com.

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