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Rubeis v. Aqua Club Inc.11/23/2004
This opinion is uncorrected and subject to revision before publication in the Official Reports.
An employer's liability for an on-the-job injury is generally limited to workers' compensation benefits, but when an employee suffers a "grave injury" the employer also may be liable to third parties for indemnification or contribution. In the three actions before us, we are again asked to define the scope of an enumerated "grave injury" in Workers' Compensation Law § 11this time "an acquired injury to the brain caused by an external physical force resulting in permanent total disability." We hold that a brain injury results in "permanent total disability" under section 11 when the evidence establishes that the injured worker is no longer employable in any capacity.
Rubeis v The Aqua Club, Inc.
Aldo Rubeis, an ironworker, sustained a brain injury when he fell approximately 19 feet from a ladder while installing a steel cupola at the Aqua Club. At the time of the accident, Rubeis was employed by Venezia Iron Works, Inc. Rubeis commenced a personal injury action against Aqua Club, which then impleaded Venezia alleging a cause of action for common law indemnification and contribution. Aqua Club claimed that plaintiff sustained a grave injury under Workers' Compensation Law § 11 and thus plaintiff's employer was liable.
At the close of the liability phase of trial, the court granted Aqua Club judgment on its claim against Venezia, subject to resolution of the question whether plaintiff sustained a grave injury , which it submitted to the jury. The court instructed the jury that " n order to prove a grave injury . . . the medical evidence must indicate that . . . plaintiff is unable to return to any employment. You may consider plaintiff's ability to obtain other employment and should also consider his ability to perform the usual and customary tasks of ordinary day-to-day living, such as whether he is physically independent and ambulatory, in determining whether or not plaintiff suffered a grave injury. . ."
The jury found that the plaintiff sustained a grave injury and awarded him approximately $3.2 million in damages. The trial court denied Venezia's motion to set aside the verdict, but the Appellate Division, Second Department, reversed and granted the motion. Relying on Second Department case law holding that brain injury does not result in permanent total disability where the employee is able to perform day-to-day functions, the Appellate Division concluded that plaintiff had not suffered a grave injury under Workers' Compensation Law § 11.
Largo-Chicaiza v Westchseter Scaffold Equipment Corp.
Jorge Largo-Chicaiza, a day-laborer, sustained a brain injury when he fell from the roof of a six-story house owned by Peter and Catherine McCaffrey while removing shingles. At the time of the accident, he was employed by the general contractor, Salvatore Sanzo. Largo-Chicaiza brought a personal injury action against the McCaffreys, Sanzo and the roofing subcontractors. In their answers, defendants each sought dismissal of the complaint and, in the alternative, cross-claimed for indemnification and contribution against Sanzo pursuant to Workers' Compensation Law § 11.
Sanzo sought summary judgment against plaintiff and dismissal of all cross-claims against him on the ground that he was plaintiff's employer, and plaintiff's sole recovery against him were therefore workers' compensation benefits. The trial court granted Sanzo's motion for summary judgment as against plaintiff, but denied his motion seeking to prohibit impleader actions against him and converted defendants' cross-claims into third-party actions against Sanzo. Ci
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