$4 million Jury Verdict against Nowak Construction Co. for Workplace Accident

Worker seriously injured in trench when it collapsed

Verdict:(P) $4,354,168.00
Case Type:Workplace Safety, Workplace – Construction Site
Case Name:Oscar Avalos v. Nowak Construction Co., No. 2008-1103
Venue:El Paso County District Court, 327th, TX
Judge:Linda Chew
Date:05-18-2010

Plaintiff(s):

Attorney(s):

  • Sam J. Legate; Scherr & Legate, PLLC; El Paso, TX, for Oscar Avalos
  • James F. Scherr; Scherr& Legate PLLC; El Paso, TX, for Oscar Avalos

Expert(s):

  • James Knorpp P.E., C.S.P.; Workplace Safety; Keller, TX called by: Sam Legate, James Scherr
  • Joseph Gonzalez M.D.; Physical Rehabilitation; San Antonio, TX called by: Sam Legate, James Scherr

Defendant(s):

Attorney(s):

  • Milton Carey Colia; Kemp Smith; El Paso, TX, for Nowak Construction Co.
  • Shawn White; Kemp Smith; El Paso, TX, for Nowak Construction Co.

Expert(s):

  • None

Facts:

On Sept. 14, 2006, plaintiff Oscar Avalos, 50, was a construction worker employed by Rocking Q Construction, which was a subcontractor for Nowak Construction, a Kansas-based corporation, on an El Paso project. While he was placing a sewer line in a 7-foot deep trench lined with metal plates, the trench collapsed and pinned him under a 1,500-pound plate. He sustained severe injuries.

Avalos sued Nowak Construction, claiming that the measures taken to prevent trench collapse were inadequate. He argued Nowak was operating under a city contract that required safety measures which were not in place. The plaintiff argued that Nowak exercised full control over the trench safety measures.

Nowak argued that the trench safety measures were adequate. Defense counsel argued that Nowak did not have control over the trench safety measures, and that such control was solely in the hands of Rocking Q.

Avalos originally named a second corporation, Silverton Construction, and the individual who prepared the site’s safety plan, but the corporation was nonsuited before trial and the court dismissed the safety engineer at trial. Nowak named the owner of Rocking Q as a third-party defendant, but the court dismissed it before trial.

Injury:

Avalos, a 50-year-old married father of two, ruptured his spleen and pancreas. He sustained 11 broken ribs, a collapsed lung, disc fractures at T9 and T10 and a shoulder impingement. He underwent emergency surgery to remove his spleen and part of his pancreas. He was in a coma for 10 days. He has been designated as permanently disabled by the Social Security Administration. The plaintiff claimed that he will require spinal fusion and surgery to correct his shoulder impingement. He sought an unspecified amount for past and future pain and suffering, medical expenses, physical impairment, lost income and disfigurement.

Defense counsel disputed the damages, arguing Avalos’ injuries were not as severe as claimed. Defense counsel also sought a reduction in past medical expenses to reflect the amount Nowak claimed to have previously paid toward his medical bills.

Verdict Information:

The jury found Nowak was in control of the trench safety measures and was negligent. Avalos was awarded $4,354,168. The court reduced past medical expenses to $86,293.06 to reflect the amount already paid by Nowak and awarded $211,035.82 in prejudgment interest.

Oscar Avalos

  • $128,376 Personal Injury: Past Medical Cost
  • $424,292 Personal Injury: Future Medical Cost
  • $350,000 Personal Injury: Past Physical Impairment
  • $500,000 Personal Injury: Future Physical Impairment
  • $97,000 Personal Injury: Past Lost Earnings Capability
  • $304,500 Personal Injury: FutureLostEarningsCapability
  • $1,000,000 Personal Injury: Past Pain And Suffering
  • $850,000 Personal Injury: Future Pain And Suffering
  • $350,000 Personal Injury: Past Disfigurement
  • $350,000 Personal Injury: Future Disfigurement

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