LOCKPORT – A worker who was left disabled after being hit in the head in a 2009 construction accident was almost as much at fault as the company was, a jury ruled last week.
Thus, Frank P. Zito of Wheatfield will collect only 55 percent of the damage tab the State Supreme Court jury calculated for medical expenses and pain and suffering. Still, Zito, 60, stands to receive $308,863 from Pumpcrete Corp. of Orchard Park.
“We were disappointed it wasn’t an outright defense verdict,” said Dennis P. Glascott of the Goldberg Segalla law firm, the attorney for Pumpcrete.
But Glascott said Friday the company might decide to let the verdict stand rather than appealing it or seeking to reduce it further in post-trial motions.
“In this day of big jury verdicts, it could have been worse,” Glascott said. “We’re looking at it. We’re not sure [an appeal] is worth it.”
Zito’s attorney, R. Charles Miner of Smith Miner O’Shea & Smith, said he would honor his client’s request not to discuss the case with the media.
In a trial that lasted three weeks before Niagara County Judge Matthew J. Murphy III, sitting as an acting State Supreme Court justice, the six-member jury ascribed 55 percent of the fault for the accident to Pumpcrete and 45 percent to Zito.
It figured that Zito’s past and future lost wages and his past and future pain and suffering were worth $561,552, but he can only pocket 55 percent of that.
The incident occurred Feb. 10, 2009, on a Campbell Boulevard bridge reconstruction job over Tonawanda Creek on the Amherst-Pendleton border.
Zito, working for Oakgrove Construction of Elma, was assigned to act as the “hose man,” the person who positions the end of the hose as concrete was pumped out of a truck belonging to Pumpcrete, a subcontractor on the job.
Zito had to stand on a steel frame inside the concrete forms that were designed to create the bridge abutments. After positioning the hose, Zito was to signal the boom operator on the concrete truck to start pumping.
Hand signals were used so Zito could keep his eye on where the wet concrete was going.
“He said he didn’t look up. His job was to look down,” Glascott said.
Although nothing was said at the time, Zito claimed that a recoil of the concrete boom struck him on top of his hard hat.
Eventually, career-ending neck and spine injuries resulted, including a cervical fusion.
“We contested it,” Glascott said. “Nobody saw it happen except for Mr. Zito. He didn’t tell anybody at Oakgrove for six days.”
Glascott argued during the trial that Zito had a pre-existing neck condition, and although he didn’t talk to jurors after their decision, he surmised that claim might have had an effect on the final verdict.
In a pretrial hearing, Zito argued that it was up to the Pumpcrete employee operating the boom to pay attention to his location and not trigger the concrete flow if Zito was in an unsafe position.