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Defense: Worker should have seen, avoided excavated area






Norfolk County


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


May 5, 2017



Deborah Giardino (Female, 50 Years), 

Phillip Giardino (Male, 52 Years)

Plaintiff Attorney(s):

Claudine A. Cloutier;
Keches Law Group, P.C.;
Deborah Giardino, Phillip Giardino ■ Loren E. Laskoski;
Keches Law Group, P.C.;
Deborah Giardino, Phillip Giardino


Kobo Utility Construction Corp.

Defense Attorney(s):

Michael P. Johnson;
Boyle | Shaughnessy Law;
Kobo Utility Construction Corp. ■ Patrick M. Audley;
Boyle | Shaughnessy Law;
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.

Trial Information:


Rosalind H. Miller

Trial Length:


Trial Deliberations:


Jury Composition:

13 jurors

Post Trial:

There was no appeal and this case is closed.

Editor’s Comment:

This report is based on information that was provided by defense counsel. Plaintiff’s counsel did not respond to a request for comment.