In April 2005, carpentry labourer Deymison Menezes, then 21, of Newark, New Jersey, was assigned to unload metal framing studs from a Gradall 534 telescopic forklift, but the absence of a fall protection device resulted in him falling 40 feet (12 m) and suffering severe injuries.

Insurers for Erickson Construction LLC, Mega Construction and Heavy Contractors settled the case for USD800,000 after extensive litigation with Menezes’ attorney, Gerald H Clark, a partner with the law firm of Keefe Bartels Clark LLC in Red Bank, New Jersey and chairman of the firm’s traumatic brain injury practice group.

Clark filed the suit in Monmouth County Superior Court in Freehold, and the payment was made in May.

Menezes was working on the fifth floor at a large construction project in Warminster Township, Pennsylvania. The forklift would hoist the materials to upper levels, and construction workers would stand on unguarded balconies and physically handle the unloading. In this case, the forklift moved during the unloading process and knocked Menezes off the balcony onto the ground.

Erickson, the general contractor, neglected to require subcontractors and their workers to use fall protection devices until after the accident, according to evidence in the case.

The fall resulted in Menezes fracturing a leg that required surgery, amputation of a finger, a broken wrist and brain injury. He went through a lengthy recuperation and was out of work for more than a year.
Erickson "had a non-delegable duty to manage safety and enforce OSHA (regulations) on the job site and down the chain to (Menezes’) employer" who was operating the forklift, Clark says. "The lower tier subs also had this duty as to the subs below them. The case alleged all tiers failed in this regard."

The failures included allowing an untrained worker without a forklift license to operate the forklift without the balancers extended and without proper signaling, Clark notes.

While the incident occurred in Pennsylvania, the case was litigated in New Jersey because the plaintiff and most defendants were from New Jersey and all defendants did business in New Jersey, according to Clark.