Laborer Fall from Height – $6.3 Million

Jury Instructions-IL > Construction > Laborer Fall from Height – $6.3 Million

Janusz Galdyn v. The Meyne Company, 04 L 12872

Construction Laborer Fall from height – $6.3 million verdict

A laborer sued the general contractor for injuries he sustained from a fall from a scaffold. While sweeping the surface of the scaffold he allegedly tripped and fell through an open area with no mid-rail protection. He suffered severe orthopedic injuries to his limbs and back with permanent disability. Plaintiff asked for $15 million and the jury returned a verdict for $6.3 million. OSHA and ANSI regulations were invoked as applicable standards.

IPI 1.01 – Modified by the court to be read at end of case, and updated by IPI Committee in 2009 to include old IPI 3.01 language)

Now that the evidence has concluded, I will further instruct you as to the law and your duties. The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party, whether a corporation or an individual, should receive your same fair consideration.

I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

The use of cell phones, text messaging, Internet postings and Internet access devices in connection with your deliberations violates the rules of evidence and you are prohibited from using them.

You must make your decision based on what you recall of the evidence. You will not receive a written transcript of the testimony when you retire to the jury room.

An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

IPI 2.01 – Evidence Deposition

The testimony of certain witnesses was presented by reading or videotape of their testimony. You should give the testimony of each of them the same consideration you would give it had the witnesses personally appeared in court.

3.02 Witness Who Has Been Interviewed by Attorney (2006)

An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not affect the credibility of the witness.

IPI 3.03 Insurance – Updated in 2009

If you find for the plaintiff, you shall not speculate about or consider any possible sources of benefits the plaintiff may have received or might receive. After you have returned you verdict, the court will make whatever adjustments are necessary in this regard.

IPI 3.04 Circumstantial Evidence

A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 10.01 Negligence—Adult—Definition

When I use the word “negligence” in these instructions, I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.

IPI 10.02 Ordinary Care—Adult—Definition

When I use the words “ordinary care,” I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.

IPI B10.03 Duty of Care Adult Plaintiff—Contributory Negligence

It was the duty of the plaintiff, Janusz Galdyn before and at the time of the occurrence, to use ordinary care for his own safety and the safety of his own property. The Plaintiff is contributorily negligent if (1) he failed to use ordinary care for his own safety, and (2) such failure to use such ordinary care is a proximate cause of his own injury.

The plaintiff’s contributory negligence, if any, which is 50% or less of the total proximate cause of damages for which recovery is sought, does not bar recovery. However, the total amount of damages to which the plaintiff would otherwise be entitled is reduced in proportion to the amount of his negligence. This is known as comparative negligence.

If the plaintiff’s contributory negligence is more than 50% of the total proximate cause of damages for which recovery is sought, the defendant shall be found not liable.

IPI 10.04 Duty to Use Ordinary Care—Adult—Defendant

The Plaintiff in this case is: Janusz Galdyn

The Defendant in this case is: The Meyne Company, a division of Bulley & Andrews, Inc.

It was the duty of the defendant before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff. That means it was the duty of the defendant to be free from negligence.

IPI 12.04 Concurrent Negligence Other Than Defendant’s

More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that its negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.

However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person or persons other than the defendant, then your verdict should be for the defendant.

IPI 15.01 Proximate Cause—Definition [Updated Sept. 2009]

When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s injury. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.

IPI 3.08 – Opinion Testimony [New – 08]

You have heard a witness give opinions about matters requiring knowledge and skill. You should judge this testimony in the same way you judge the testimony from any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’ qualifications, and all of the other evidence in the case

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which he has the burden of proof is more probably true than not true.

B21.02 & 55.03 Combined/Modified – Burdens/Issues/Construction Negligence—Issues made by the Pleadings/Burden of Proof

The Plaintiff, Janusz Galdyn, seeks to recover damages from the defendant, The Meyne Company, a division of Bulley & Andrews, Inc., based upon two counts in the complaint.

COUNT I

In order to recover damages under Count I, the plaintiff has the burden of proving each of the following propositions:

First, that the defendant acted or failed to act in one of the following ways and that in so acting, or failing to act, the defendant was negligent:

Failed to adequately secure the plastic winter protection to the scaffold; or,

Failed to adequately maintain and repair the winter protection on the scaffold; or,

Failed to install missing guardrail.

Second, that the plaintiff suffered injuries;

Third, that the negligence of the defendant was a proximate cause of the plaintiff’s injuries.

If you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant. On the other hand, if you find from your consideration of all the evidence that each of these propositions has been proved, then you must consider the defendant’s claim that the plaintiff was contributorily negligent as to Count I.

As to that claim, the defendant has the burden of proving both of the following propositions:

First, that the plaintiff acted or failed to act in one of the following ways and that in so acting, or failing to act, the Plaintiff was negligent:

Failed to exercise proper lookout; or,

Failed to secure the scaffold upon which he was standing; or,

Failed to inspect the scaffold before using it; or,

Failed to install a guardrail.

Second, that Plaintiff’s negligence was a proximate cause of plaintiff’s own injuries.

If you find from your consideration of all the evidence that the plaintiff has proved all the propositions required of the plaintiff, and that the defendant has not proved both of the propositions required of the defendant, then your verdict should be for the Plaintiff and you will not reduce plaintiff’s damages.

If you find from your consideration of all the evidence that the plaintiff has proved all the propositions required of the plaintiff, and that the defendant has proved both of the propositions required of the defendant, and if you find that the plaintiff’s contributory negligence was 50% or less of the total proximate cause of the damage for which recovery is sought, then your verdict should be for the plaintiff, and you will reduce the plaintiff’s damages in the manner stated to you in these instructions.

If you find from your consideration of all the evidence that the Defendant has proved both the propositions required of the Defendant and if you find that the plaintiff’s contributory negligence was more than 50% of the total proximate cause of damage for which recovery is sought, then your verdict should be for the defendant.

COUNT II

In order to recover damages under Count II, the plaintiff has the burden of proving each of the following propositions:

First, that the Defendant retained some control over the safety of the work;

Second, that the defendant acted or failed to act in one of the following ways and that in so acting, or failing to act, the defendant was negligent:

Failed to have the scaffold inspected by a competent person to ensure that it had proper fall protection; or,
Failed to appreciate that the scaffold had inadequate fall protection; or,
Failed to install or order installation of proper fall protection; or,
Failed to enforce its safety program rules for scaffold fall protection; or,
Allowed the scaffold to be used with insufficient fall protection.

Third, that the Plaintiff was injured; and

Fourth, that the defendant’s negligence was a proximate cause of plaintiff’s injuries.

As to that claim, the defendant has the burden of proving both of the following propositions:

First, that the plaintiff acted or failed to act in one of the following ways and that in so acting, or failing to act, the Plaintiff was negligent:

Failed to exercise proper lookout; or,

Failed to secure the scaffold upon which he was standing; or,

Failed to inspect the scaffold before using it; or,

Failed to install a guardrail.

Second, that Plaintiff’s negligence was a proximate cause of plaintiff’s own injuries.

IPI 30.01 Measure of Damages

If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate the plaintiff for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendant, taking into consideration the nature, extent and duration of the injury.

The disfigurement as a result of the injuries.

The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.

Disability experienced and reasonably expected to be experienced in the future as a result of the injuries.

The reasonable expense of necessary medical care, treatment and services received, and the present cash value of reasonable expense of medical care, treatment and services reasonably certain to be received in the future as a result of the injuries.

The value of earnings and benefits, lost and the present cash value of the earnings and benefits reasonably certain to be lost in the future as a result of the injuries.

Whether any of these elements of damages has been proved by the evidence is for you to determine.

IPI 34.01 Damages Arising in the Future—Extent and Amount

If you find that a Plaintiff is entitled to damages arising in the future because of injuries or because of loss of earnings, you must determine the amount of these damages which will arise in the future. If these damages are permanent in nature, then in computing these damages you may consider how long the Plaintiff is likely to live.

With respect to a loss of future earnings, you may consider that some persons work all their lives and others do not; that a person’s earnings may remain the same or may increase or decrease in the future.

IPI 34.02 Damages Arising in the Future—Discount to Present Cash Value

In computing the damages arising in the future because of future medical expenses or because of the loss of future earnings, you must determine their present cash value. “Present cash value” means the sum of money needed now, which, when added to what that sum may reasonably be expected to earn in the future, will equal the amount of the expenses and earnings at the time in the future when the expenses must be paid or the earnings would have been received.

Damages for pain and suffering and disability and disfigurement are not reduced to present cash value.

34.04 Damages Arising in the Future—Mortality Tables as Evidence of Damages—Injury Case

According to a table of mortality in evidence, the life expectancy of a white male aged 26 years is 50.5 years. This figure is not conclusive. It is the average life expectancy of persons who have reached the age of 26. It may be considered by you in connection with other evidence relating to the probable life expectancy of a Plaintiff in this case, including evidence of his occupation, health, habits, and other activities, bearing in mind that some persons live longer and some persons less than the average.

IPI 36.01 In Absence of Liability—No Occasion to Consider Damages

If you decide for a Defendant on the question of liability, you will have no occasion to consider the question of damages as to that Defendant.

50.11 A Corporation Acts Through Its Employees

The defendant is a corporation and can act only through its officers and employees. Any act or omission of an officer or employee within the scope of his employment is the action or omission of the defendant corporation.

55.01 Construction Negligence—Work Entrusted to Another

A contractor who entrusts work to a subcontractor can be liable for injuries resulting from the work if the contractor retained some control over the safety of the work and the injuries were proximately caused by the contractor’s failure to exercise that control with ordinary care.

55.02 Construction Negligence—Duty

A party who retained some control over the safety of the work has a duty to exercise that control with ordinary care.

55.04 Construction Negligence—More Than One Person Having Control

One or more persons may have some control over the safety of the work. Which person or persons had some control over the safety of the work under the particular facts of this case is for you to decide.

IPI 60.01 Violation of Statute, Ordinance, or Administrative Regulation

There was in force under The Occupational Safety and Health Administration (OSHA) at the time of the occurrence in question regulations which provided that:

Each worker on a scaffold more than 10 feet above a lower level shall be protected from falling to that lower level.

Each employee shall comply with occupational, safety, and health standards and all rules, regulations, and orders issued by OSHA applicable to one’s own actions and conduct.

If you decide that a party violated a regulation on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, a party was negligent before and at the time of the occurrence.

IPI B45.01 – FORMS OF VERDICT – COMPARATIVE

When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.

Your verdict must be unanimous.

Forms of verdicts are supplied with these instructions. After you have reached your verdict, fill in and sign the appropriate form of verdict and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

The Plaintiff in this case is: Janusz Galdyn

The Defendant in this case is: The Meyne Company, a division of Bulley & Andrews, Inc

If you find for Plaintiff and against the Defendant and if you further find that Plaintiff was not contributorily negligent, then you should use Verdict Form A.

If you find for Plaintiff and against the Defendant, and if you further find that Plaintiff’s injuries were proximately caused by a combination of Defendant’s negligence and the Plaintiff’s contributory negligence, and that Plaintiff’s contributory negligence was 50% or less of the total proximate cause of damages for which recovery is sought, then you should use Verdict Form B.

If you find for Defendant and against the Plaintiff, or if you find that Plaintiff’s contributory negligence was more than 50% of the total proximate cause of damages for which recovery is sought, then you should use Verdict Form C.

IPI B45.01.A – VERDICT FORM A

VERDICT FORM A

We, the jury, find for the Plaintiff and against the Defendant. We assess the recoverable damages in

the sum of $___________________________________, itemized as follows:

The disfigurement as a result of the injuries. $_________________

Disability experienced and reasonably expected to be experienced

in the future as a result of the injuries. $_________________

The pain and suffering experienced and reasonably certain to be

experienced in the future as a result of the injuries. $_________________

The reasonable expense of necessary medical care, treatment and

services received, and the present cash value of reasonable expense

of medical care, treatment and services reasonably certain to be

received in the future as a result of the injuries. $_________________

The value of earnings and benefits, lost and the present cash value

of the earnings and benefits reasonably certain to be lost in the

future as a result of the injuries. $_________________

[Signature Lines ]

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(Foreperson)

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VERDICT FORM B

We, the jury, find for the Plaintiff and against the Defendant and further find the following:

First, without taking into consideration the question of reduction of damages due to the negligence of the plaintiff, we find that the total amount of damages suffered by the plaintiff as a proximate result of the occurrence in question is $___________________________________, itemized as follows: