Federal Jury Awards $638,671.63 to Roofer Who Fell From a Monroe, NY Building Under the Scaffold Law

On June 20, 2001, Jose Raimundo Madeira was working as a roofer for C & L Construction at a development site in Monroe, New York. He fell from the top of a building. The injuries required four surgeries and more than three months in the hospital, and at the time of trial in 2004 he was still substantially disabled, particularly in walking.

Madeira, a Brazilian citizen who had entered the United States in 1998, sued in the U.S. District Court for the Southern District of New York. His defendants were Affordable Housing Foundation, Inc., the owner of the site, and Mountain Developers Associates, LLC, the development's general contractor. The claim rested on New York's Scaffold Law, Labor Law 240(1), which requires owners and contractors to provide the safety devices that protect workers from falls. Richard Winograd of Ginarte, O'Dwyer, Winograd & Laracuente appeared for Madeira in the district court, and the firm (as Ginarte, O'Dwyer & Winograd) was counsel on the appeal alongside Mahoney & Keane, LLP.

The trial was split in two. In the first phase the jury heard from Madeira; his brother, Paulo Miranda, who had hired him and saw the fall; and Jacob Sofer, the president of both Affordable and Mountain. A vocational rehabilitation counselor testified about Madeira's poor prospects for future work in the United States or Brazil given his disability, and the parties offered conflicting medical opinions on the extent of his injuries. The court told the jury that Madeira's immigration status had no bearing on liability, and allowed it to weigh that status only when deciding lost earnings.

The jury found Affordable and Mountain liable under Labor Law 240(1) and awarded $638,671.63 in all. That was $92,651.63 in expenses, $46,000 for past pain and suffering, $40,020 in past lost earnings, $230,000 for future pain and suffering over 42 years, and $230,000 in future lost earnings over 26 years.

In the second phase, the jury turned to the owner and general contractor's claim for indemnification against Madeira's employer. It found an enforceable indemnity contract and assigned 82 percent of the fault to C & L, with 9 percent each to Mountain and Affordable. On April 22, 2004, the district court denied the defendants' post-verdict motions in a detailed memorandum, and judgment was entered on May 7, 2004.

The defendants appealed, chiefly arguing that federal immigration law barred any award of lost United States earnings to an undocumented worker after the Supreme Court's decision in Hoffman Plastic Compounds v. NLRB. On November 14, 2006, the Second Circuit rejected that argument. It reasoned that personal injury is not a wrong immigration law authorizes, that the employer rather than the worker had knowingly arranged the unlawful employment, and that the jury had been told to consider Madeira's removability. The court also upheld the apportionment among the three companies, the exclusion of evidence about C & L's lack of insurance, the dismissal of the third-party claim against C & L's insurer, and the indemnity contract, and affirmed the judgment in all respects.