A fifty-three year old ex-Marine who lives in Barker may have scored the largest non-jury award in the history of Niagara County, more than $7.2 million, for severe leg injuries he suffered while working on a window and door project at Niagara County Community College.
The Niagara Falls Reporter has learned that Michael Lombardo, the ex-Marine that was injured on May 27, 2008 when unsecured windows on the passenger side of a flatbed truck began to shift and fell onto his right leg, causing severe and permanent injuries, was awarded a total of $7,250,000 in damages following a more than two week trial in front of State Supreme Court Justice Ralph Boniello.
Tom Burton, the Buffalo lawyer who represented Lombardo, said the former Marine Corps fire arms instructor turned down "less than reasonable offer to settle" and proceeded to trial in front of Boniello, after two days of intense mediation efforts to settle.
"At that point, both sides waived the jury, and we proceeded in front of Judge Boniello," said Burton, who added that Lombardo is in severe pain almost constantly from the leg injuries he suffered at NCCC.
Defendants in the case are Niagara County, Niagara County Community College and its Board of Trustees, and Wendel Duchscherer, Architects and Engineers, PC.
Niagara County Attorney Claude A. Joerg said the County will immediately file an appeal with the Appellate Division of State Supreme Court, particularly in regard to the awarding of $3.25 million in future medical expenses and $2 million for future pain and suffering, covering the time from the date of the verdict until the time the plaintiff is expected to live.
Burton said not a day goes by when Lombardo is pain free from the injuries he suffered, said the trial in front of Boniello lasted almost three weeks. Boniello filed his decision with the Niagara County Clerk on February 9th.
Burton said there were several attempts to reach a settlement during the trial, but none of the offers were reasonable, given the extent of the injuries Lombardo suffered, and the extreme pain he must live with the rest of his life. Attorney for the defendant was Brian Crosby of Gibson , McAskill and Crosby of Buffalo.
In his decision, Boniello wrote "the plaintiff suffered a severe and extensive crush injury to his lower right extremity. Specifically, the plaintiff sustained angulated and displaced fractures to both the tibia and fibula which required an open reduction and internal fixation including rodding of the tibia fracture with distal fixation. Due to the crushing nature of the injury, there was extensive damage to the soft tissue, including but not necessarily limited to, the ligaments, musculature, nerves, vascular and lymph systems in and about the area of the fracture. Subsequent to the open reduction surgery and internal fixation, the plaintiff endured significant pain and swelling in his lower right leg and recurrent venous thrombosis (DVT)."
The judge also wrote that several doctors had diagnosed, or at least raised the possibility, that the plaintiff also suffers from Chronic Regional Pain Syndrome (CRPS). Early medical reports suggested and even recommended amputation for Lombardo, but he was opposed to that at the time.
While Lombardo was injured in a flatbed truck on a campus road about halfway between the trailer and the student center where the renovation project was underway, the parking area where the trailers were parked was specifically selected by the County, said the judge in the decision.
In his decision Judge Boniello said that it is well settled labor law that owners and contractors have a duty to provide reasonable and adequate protection and safety to workers and comply with rules and regulations promulgated by the NYS Labor Dept.
In this case, Boniello ruled that "It is undisputed that no safety devices were provided to secure the windows during transport, and had such steps been provided, the plaintiff, while riding in the back of the flatbed truck, would have been protected from the hazard presented when the windows that were leaned up against the stake sidewall of the flat bed truck became dislodged and fell (onto the plaintiff's right leg) during transport."
The windows and frames involved in the project were either 4 feet by 8 feet or 4 feet by 12 feet, and each weighed 300 pounds or more, depending on the exact size.
At the time he was injured, Lombardo was working as a union laborer with another laborer, Ralph Rose. They worked together for two weeks prior to the accident transporting windows from a trailer to the student center, where replacement windows and doors were being installed.