Dale Amanda McElroy, Administrator of the Estate of Peter John McElroy, Jr., Deceased v. Qualitiy Construction N.Y., Inc., Learie Wilson, Pernetta Wilson and Mako Plumbing & Heating, Inc,, No.: 16269/04

$950,000.00

Christopher C. Bragoli, Esq., Bragoli & Associates, P.C., Melville, New York

Dara L. Rosenbaum, Quirk & Bakalor, P.C., New York, NY
Ernesto O. Gimeno, Fiedelman & McGraw, Jericho, NY

On July 16, 2004, plaintiff’s decedent Peter McElroy, Jr., 23, a construction worker, became stranded on a second-story roof while attempting to secure a tarp covering the roof. Mr. McElroy called his employer, Quality Construction N.Y., Inc., for assistance. The employer, in turn, called its plumbing subcontractor, Mako Plumbing & Heating, Inc. to see if its employees could help Mr. McElroy. Several employees of the plumbing subcontractor attempted to help Mr. McElroy down from the roof using one of its own ladders. The Mako Plumbing ladder proved to be too short, however, Mr. McElroy while attempting to swing his legs down from the roof in order to catch the upper rung of the extension ladder, lost his balance and fell some 20-25 feet to the ground below. Mr. McElroy sustained blunt head trauma as a result of the fall and died.

Mr. McElroy’s mother, Dale McElroy, acting as the administrator of the estate of Peter McElroy sued the decedent’s employer, Qualiti Construction, N.Y.; the homeowners, Learie and Pernetta Wilson; and the plumbing subcontractor, Mako Plumbing & Heating, Inc. She asserted causes of action under the Labor Law, as well as common-law negligence theories of negligent rescue.

Plaintiff’s counsels’ main allegation was that the Mako Plumbing ladder was too short for its intended purpose under industry and industrial Code standards, and was otherwise defective for its intended purpose. They claimed that the defendants were negligent in attempting to rescue Mr. McElroy with an inappropriate ladder. They alleged that this forced Mr. McElroy to attempt to swing his legs off the roof in an attempt to reach the ladder and caused his fall. Plaintiff’s counsel also alleged that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Mr. McElroy was not provided the safe, proper equipment that is a requirement of the statute. He also contended that the site was not properly safeguarded and that, as such, it violated Labor Law § 241(6). He further contended that the site violated the general safety provisions of Labor Law § 200.

The defendants contended that Mr. McElroy made the decision to swing his legs off the roof and hang down to try to reach the ladder. They alleged that it was Mr. McElroy’s actions that caused his fall and that he was the sole proximate cause of the fall.

Plaintiff claimed that Mr. McElroy had sustained blunt force trauma to his head as a result of the fall. He was taken by ambulance to Nassau University Medical Center in East Meadow where he remained in a coma until his death 4 days later.

Qualitiy Construction settled with the plaintiff for $500,000 prior to trial at a mediation session on April 17, 2007. Mako Plumbing then agreed to settle during jury selection for $450,000 on May 21, 2007. The estate of Peter McElroy received a total of $950,000.