On February 1, 2019, the Fourth Department issued a Decision in the matter of Flowers v. Harborcenter Development, LLC, et al., Docket No. CA 18-00261; Index No.: 802298/15, vacating $1.6 million of a $1.8 million jury verdict against our client, the defendants in this Erie County Labor Law 240 (1) case. Plaintiff, a construction site laborer, alleged that he was struck on and about the head by a load of rebar which he had bound together, and which a crane was hoisting with his guidance. As a result, plaintiff claimed that he could no longer work in the same industry and could not earn a comparable salary doing anything else. A matter of weeks before trial plaintiff’s counsel helped the him secure a part time civil service position.

The Fourth Department had previously affirmed summary judgment for plaintiff on the issue of liability, paving the way for a damages-only trial. Florina Altshiler tried the case for the defense and asked the judge, among other things, to charge the jury on mitigation of damages. The trial judge refused. The jury awarded $40,205.76 (past medical expense), $150,000.00 (past pain and suffering), $240,516.00 (past lost earnings), $1,442,234.00 over 18 years (future lost earnings) and nothing for future medical expenses or future pain and suffering.

The appellate court noted that “plaintiff’s physicians unanimously agreed that he was capable of working in a light duty or sedentary setting and, although he did obtain work shortly after being advised by doctor to seek job training, there is a question under the circumstances, of whether the part-time job that he took was a reasonable mitigation of his damages.” Accordingly, the court concluded that the trial judge should have charged the jury on mitigation of damages and it vacated the award for past and future lost earnings and granted a new trial as to those elements. Josh H. Kardisch wrote and argued the winning appeal.