New York Construction Accident Trials-Direct Examination of an Adverse Witness

In this video, New York injury lawyer Ben Rubinowitz demonstrates direct examination by plaintiff’s attorney of an adverse witness. In this example Chris Sallay plays the witness, Robert Hoover, a site foreman with experience in the construction industry.

For the fact pattern upon which this is based click on extended entry.

This action arises out of an accident which occurred at a building renovation project located at 25 Smith Street in the City of White Plains on September 1, 2010. The project involved the renovation of a 2 story brick facade building owned by defendant Faber Partners. The General Contractor was Vernon Contractors, Inc. The plaintiff, Larry Kroger, was the President and owner of his own painting company, Delta Painting – a sub-contractor hired by Vernon Contractors, Inc. to perform the exterior painting of the building.

The plaintiff testified at his deposition that he was a self-employed painter with over 15 years of experience. On the day of his accident, he had worked on a different job during the day and arrived at the defendants’ property at approximately 5:30 p.m. to power wash the exterior of the building in preparation for painting. He testified that he was using his relatively new 12 foot A-frame ladder, that there was nothing wrong with the ladder, and that it was his usual custom to use an A-frame ladder (as opposed to an extension ladder leaning up against the building) when power washing. He placed the ladder next to the wall, with the rungs facing the wall. When he set up the ladder, he placed one side on pavement and the other side on grass. He alleges that he tested the ladder before using it to make sure it was secure. He had been power washing for approximately 20 minutes and had moved the ladder once before his accident. According to his testimony, he was finished with this particular section of the wall and was descending the ladder from the eighth rung to the seventh rung, when he felt the ladder tilt in one direction and, although he leaned his body in the opposite direction, he was unable to balance the ladder and he fell approximately 8 feet to the pavement. He testified that the ground had gotten wet from the power washing, causing one or more of the ladder footings to sink into the grass and the ladder to tilt. According to Mr. Kroger, there was no other place to set his ladder without some part of it resting on the grass.The defendants do not dispute that the plaintiff was hired to paint the building or that he fell while power-washing in preparation for painting. They contend that the plaintiff was the sole proximate cause of his accident, based upon the affidavit and deposition testimony of nonparty Chip Diller. DIller, an acquaintance of the plaintiff was working inside the building as a security guard at the time of the accident. According to Mr. Diller, he spoke with Mr. Kroger not long before the accident. He testified that he and the plaintiff had played softball and drank beer together on prior occasions. He also testified that the plaintiff had a cooler with beer, and offered him a beer on the day of the accident when he arrived to start working. Mr. Diller further testified that he saw the plaintiff set up his ladder, that the plaintiff appeared to be intoxicated, that he commented to the plaintiff about his intoxication, and that he was concerned about his safety. Nothing in the hospital record indicates that the plaintiff was drinking and no blood test was actually performed. According to the plaintiff’s deposition testimony, he did not drink any alcohol on the day of his accident, but did drink the night before.

Mr. Diller further testified that he observed the plaintiff setting up an extension ladder which extended to the roof. However, the police report confirmed that it was an A-Frame ladder that was being used.

The foreman for Vernon Contractors, Robert Hoover, testified that he knew that the plaintiff was going to be coming to the site at around 5:30pm to power-wash the facade. No representatives of the owner or the general contractor were present at the time of the accident. Mr. Hoover testified that he knew the plaintiff for 12 years and trusted him to do the work. He said, “it was no big deal” that the plaintiff was there by himself as this was done on previous jobs where both he and the plaintiff had worked with no prior incidents. He also testified that he had never seen him drunk or drinking on any work site.

Immediately following the accident, Mr. Kroger was found lying on the pavement screaming in pain and complaining about his ankles. He was brought via ambulance to White Plains Hospital where they performed x-rays. He was diagnosed with a bimalleolar fracture dislocation of his left ankle and a tri-malleolar fracture of his right ankle. The following day, he underwent an Open Reduction with Internal Fixation surgery to both ankles. He remained in the hospital for eight days. From there, he was transferred to White Plains Rehabilitation Center where he remained for one month. Upon discharge from the rehabilitation