A man worked for a Greek restaurant as a dishwasher and as a deliveryman for food ordered for delivery. The Greek restaurant in Staten Island gave the deliveryman a bicycle to use for delivering its food products. On August 5, 2006, the deliveryman was en route to making the last of the fifteen deliveries he had to make during his shift. He was on Pershing Street and was turning left on Manton Street in Briarwood, New York when a car struck him.
The Queens deliveryman was knocked off his bike and he hit his head. He was not wearing a helmet. He his skull and suffered bruising in his brain. His brainwas swollen and so he filed a complaint in damages against the lady driver and owner of the car that struck him on the road. The deliveryman based his claim on the negligence of the lady driver on the road.
The lady driver and owner of the car also filed a complaint against the Greek restaurant, the employer of the bike deliveryman. The lady driver wants the Greek restaurant to indemnify her or at least contribute to the payment of damages claimed by the deliveryman.
The lady driver claims that the Greek restaurant was also negligent. It allowed the deliveryman to ride a bike without giving him training or instructions as to how to ride a bike safely. She claims that the Greek restaurant also failed to provide the deliveryman with a helmet to use when he rode the bike to make his deliveries. She claims that wearing a helmet is required by law and the deliveryman’s failure to wear a helmet contributed to the extent of his injuries.
She also claimed that the Greek restaurant scheduled too many deliveries so that the deliveryman was pressured to ride his bike recklessly on the streets. The lady driver also claimed that the Greek restaurant failed to supervise the deliveryman in the course of his employment.
The Greek restaurant, for its part, filed a motion for summary judgment. It claims that under the Workman’s Compensation Law, the employer can only be made liable to indemnify the lady driver for the claims made by the injured deliveryman if the lady driver succeeds in presenting proof that the deliveryman sustained grave injury. The Greek restaurant claims that it can only be made liable only if the deliveryman sustained a brain injury that resulted in a permanent and total disability.
The lady driver opposed the motion for summary judgment filed by the Greek restaurant but the trial court granted the motion for summary judgment. The lady driver appealed the order of the trial court.
The only question before the Court is whether or not the trial court committed an error when it granted the motion for summary judgment of the Greek restaurant.
The Court found that the Workmen’s Compensation Law has a specific and exhaustive list of injuries that it considers grave injuries. One of these enumerated injuries is a brain injury that results in permanent and total disability. The Court held that the term ‘permanent and total disability’ means that the employee can no longer be employed in any capacity as a result of the brain injury he sustained.
The Court found that since the deliveryman has presented medical evidence that details the swelling and clotting and paralysis of some parts of his brain which resulted directly from the fall and fracture he sustained while making his deliveries.
The extent of the brain injury he sustained has raised an issue of material fact which must be tried before a jury. The issue of material fact is whether or not the brain injury resulted in a permanent and total disability.
The Court reversed the order of the trial court and remanded the case for further proceedings.
Are you like the lady driver in this case who is being made to pay damages for injuries.
Injuries sustained by an employee? How can you mitigate your losses? A New York City Brain Injury Lawyer can give you advice on how you can also sue the employer of the injured employee. A New York Brain Injury attorney can help you prove that under the Workmen’s Compensation Law, the employer of the injured employee can be made to contribute to the payment of damages. At Stephen Bilkis and Associates, their NYC Brain Injury lawyers can help you prove that the employee’s injuries are grave and resulted in permanent and total disability to the employee. Come and visit the offices of Stephen Bilkis and Associates and speak with any of the NY Brain Injury attorneys.