New England Verdicts
Find out about the most important recent New England cases, selected by VerdictSearch editors. Coverage includes Middlesex, Suffolk, Worcester, Essex, Hartford, New Haven, Fairfield, Providence and Bristol counties. Subscribe to VerdictSearch New England for access to all New England verdictsPricing OptionsDefense: Worker should have seen, avoided excavated area
Type:
Verdict-Defendant
State:
Massachusetts
Venue:
Norfolk County
Court:
Norfolk County, Superior Court
Injury Type(s):
back-lower back back-fusion; lumbar
back-herniated disc(herniated disc at L2-3); lumbar(herniated disc at L2-3)
back-herniated disc(herniated disc at L3-4); lumbar(herniated disc at L3-4)
back-herniated disc(herniated disc at L4-5); lumbar(herniated disc at L4-5)
other-loss of consortium
Case Type:
Construction – AccidentsWorker/Workplace Negligence – OSHASlips, Trips & Falls – Slips, Trips & Falls, Trip and Fall
Case Name:
Phillip Giardino and Deborah Giardino v. Kobo Utility Construction Corporation,
No. 1482CV00356
Date:
May 5, 2017
Plaintiff(s):
Deborah Giardino (Female, 50 Years),
Phillip Giardino (Male, 52 Years)
Plaintiff Attorney(s):
Claudine A. Cloutier;
Keches Law Group, P.C.;
Taunton,
MA,
for
Deborah Giardino, Phillip Giardino ■ Loren E. Laskoski;
Keches Law Group, P.C.;
Taunton,
MA,
for
Deborah Giardino, Phillip Giardino
Defendant(s):
Kobo Utility Construction Corp.
Defense Attorney(s):
Michael P. Johnson;
Boyle | Shaughnessy Law;
Boston,
MA,
for
Kobo Utility Construction Corp. ■ Patrick M. Audley;
Boyle | Shaughnessy Law;
Boston,
MA,
for
Kobo Utility Construction Corp.
On Oct. 22, 2013, plaintiff Phillip Giardino, 52, a heavy equipment operator, was working at the Norwood Airport, which was under construction. He alleged that he stepped in a hole, causing him to fall. He claimed a back injury as a result of the fall. Giardino sued Kobo Utility Construction Corporation, alleging negligence and violation of OSHA regulations. Giardino argued that Kobo had been hired to remove existing runway lights and move them to another location. He asserted that this activity involved digging up and moving the lights. According to Giardino, Kobo employees dug a hole in the walking surface, which should have been filled, covered or flagged according to OSHA regulations. Giardino argued that none of those things were done and he did not know of the presence of the hole, which was a dangerous condition. Kobo contended that its employees had excavated a one- to two-foot area and the excavated area did not constitute a “hole” as defined under OSHA regulations. As such, Kobo argued that there was no requirement under OSHA to cover, fill or flag the excavated area. Kobo also argued that the excavated area was obvious and that Giardino should have seen and avoided it.
Giardino claimed multiple lumbar disc herniations. He underwent multi-level fusion at L2-3, L3-4 to L4-5. Giardino acknowledged that he had undergone a prior L5-S1 fusion it 2000, but argued that these were new injuries and the injuries had been caused by his fall at the construction site. He sought economic and non-economic damages. His spouse, Deborah Giardino, claimed damages for loss of consortium. The defense contended that Giardino’s lower back problems pre-existed the underlying accident, as evidence by a prior lumbar fusion in 2000. The defense also argued that Giardino had complaints of ongoing back pain within the two years before the subject accident. Furthermore, the defense asserted that diagnostic testing revealed degeneration of the lumbar spine, which would have required surgery regardless of the fall.
The jury found that Kobo Utility Construction was not negligent and a defense verdict was entered.
Judge:
Rosalind H. Miller
Trial Length:
8
days
Trial Deliberations:
1.5
hours
Jury Composition:
13 jurors
Post Trial:
There was no appeal and this case is closed.
This report is based on information that was provided by defense counsel. Plaintiff’s counsel did not respond to a request for comment.