New York Brain Damage Lawyers

Iron Works, Suffered Severe Brain Damage And Other Injury When He Fell From The Top Of An 18 Ladder

Rubeis v The Aqua Club, Inc. To be argued with: No. 185 Largo-Chicaiza v Westchester Scaffold Equipment Corp.

Aldo Rubeis, a 50-year-old ironworker employed by Venezia Iron Works, suffered severe brain damage and other injuries in May 1997 when he fell from the top of an 18-foot ladder while installing a cupola on The Aqua Club’s building in New Rochelle. Rubeis filed a personal injury suit against The Aqua Club, and the club filed a third-party action against Venezia for indemnification, contending Rubeis’s employer was responsible for the accident.

Expert witnesses for Rubeis testified that he experienced softening of his brain, blindness in one eye, loss of his sense of smell, dizziness, forgetfulness, decreased mobility and balance, “and an overall grave impact on his brain function,” as summarized by the Appellate Division. “Though capable of performing simple tasks, he could never be gainfully employed with any degree of responsibility and certainly not as an ironworker. His brain injury also severely restricts his physical activities, although he can carry up to 35 pounds for short periods of time, including packages from the grocery store, but excluding any tasks requiring accuracy.”

Venezia moved to dismiss the third-party claim on the ground that Aqua Club failed to prove Rubeis had sustained a “grave injury” as required by Workers Compensation Law § 11. The statute, as amended by the Omnibus Workers’ Compensation Reform Act of 1996, provides that employers cannot be held liable for workplace injuries unless their employee suffers a “grave injury,” which it defines as including “an acquired injury to the brain caused by an external physical force resulting in permanent total disability.” Section 11 does not define “permanent total disability.”

Supreme Court denied Venezia’s motion to dismiss Aqua Club’s third-party claim, concluding the jury should decide whether Rubeis had suffered a grave injury. The jury awarded Rubeis $3.2 million against Aqua Club and, regarding Venezia’s liability, it found Rubeis had sustained a grave injury as defined by section 11. Accordingly, Supreme Court ordered Venezia to indemnify Aqua Club for the judgment.

The Appellate Division, Second Department reversed the indemnification order and dismissed Aqua Club’s complaint against Venezia. It applied a strict standard for determining whether a brain injury results in a “permanent total disability,” a standard that does not focus “on the re-employability of the injured plaintiff, but rather, on the ability to engage in day-to-day functions.” It said Rubeis’s injuries, which allowed him to clothe, feed and care for himself, were not grave under section 11.

Aqua Club urges the Court of Appeals to adopt the standard applied by the Third Department in Way v Grantling (289 AD2d 790), which said, “we believe that the ‘permanent total disability’ envisioned by the Legislature relates to the injured party’s employability and not his or her ability to otherwise care for himself or herself and function in a modern society.” It said injuries that “‘permanently disabled [a plaintiff] from competitive employment’ in even the most menial tasks” could qualify as grave. The appeals in No. 185 and No. 186 present similar issues.

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