You might say grandpa was responsible.

You might say the road crew doing construction work there was responsible.

You might also say that the town or municipality was responsible.

The quick answer is that all of the above might be true. However, before jumping to conclusions, let's really explore what happened here and who is truly responsible for this fractured elbow.

He was doing a quick grocery shop. He lived only a few blocks from the store. He was in his early 70's and had been to this supermarket many times.

It was around 6:00 pm, and the sun was going down. He had two packages of groceries in his hands and walked out of the supermarket. He walked onto the sidewalk and immediately into the street, intending to cross the street and walk on the other sidewalk to get home.

Just as he was about to step up onto the sidewalk on the other side of the street, his foot fell into what turned out to be a trench. That propelled him forward and his arm braced his fall.

It was a nasty fall. A bad fall. He knew he broke something immediately. He was in terrible pain.

An ambulance was called and x-rays in the emergency room confirmed the elbow was shattered in many places. He'd need immediate surgery. And hardware. And pins and likely titanium plates to hold the broken bones together.

Two weeks later, both grandma and grandpa came into my office to see if they had a valid case.

One of the first series of questions focused on grandpa's own culpability.

"Do you wear eyeglasses?"

"Do you have a hearing aid?"

"Have you fallen before?"

"What kind of shoes were you wearing?"

"Were you carrying anything in your hands?"

"What time of day did this happen?"

These questions are designed to rule in or rule out the possibility of grandpa contributing to his own injury.

Since my office was down the street where this accident happened, I told grandma and grandpa I'd walk over and take pictures of the accident scene to preserve how the scene looked.

Later that day when I walked to the accident scene I learned something dramatic that grandpa didn't even know at that time.

There was construction work happening on this road. Major road work. Work that required the construction company to dig a trench of about 4 inches deep right near the curb where my client fell.

Ok- so a construction crew was doing road work and there was an open trench. I began taking pictures.

I then had grandma and grandpa come into my office again to go over the pictures with me.

Once again, something remarkable happened while doing this.

The photos I took of the construction work showed an area that was totally roped off with safety cones and tape. There were safety reflectors and the photos show that the trench was totally protected from pedestrians walking across the street.

What my client said next totally blew me away.

"None of that was there when my accident happened," he said.

"What did you say?" I inquired.

"All those safety cones and tape...none if it was there on the day I fell," my client stated definitively.

If true, these saftey cones would only have been put up AFTER my client's accident. That was a significant and very important finding.


While the placement of safety cones and tape after my client's accident could never be used to show that the construction company was careless, there might be another way we could use this important information.

Since my client told me that there were no cones or tape on the day of the accident, it would point to the fact that the construction company was careless and failed to make sure that pedestrians and bicyclists stayed out of the hazardous roadway where there was a clear uneven roadway.

Trying to talk directly to the construction crew would likely not get us the answers we would need. They'd shut us down very quickly the moment they sensed I was sniffing around for answers.

Instead, I opted for another strategy.

I wanted to find other witnesses who lived in the area who could confirm my client's story that there were no safety cones and tape to keep pedestrians away from this uneven roadwork.

We hit paydirt. Our efforts were successful. A witness who lived across the street remembered exactly what they did and when the construction crew put up the safety cones. It was only after my client's accident did they do that.


After ruling out my client's possible involvment for contributing to his accident did we bring a lawsuit against the construction company doing the roadwork. In addition, I also had to sue the municipality since they were the ones who had actually hired the crew to do the road repair work.

During the exchage of documents and taking pre-trial testimony, I learned that the construction crew had dug that trench earlier in the day. The crew packed up and left at the end of the day but neglected to put up any signs, safety cones, safety tape or do anything to alert pedestrians or bicyclists to the fact that there was a trench that created an uneven roadway adjacent to the curb.

Not only did common sense require safety restrictions but local rules and regulations also required the same thing. The construction crew clearly violated these rules which were designed for the safety and well-being of pedestrians and cars traveling on this roadwy.

The tragedy of this accident is that this incident never would have happened had the construction crew followed required rules, regulations and guidelines. Putting up safety cones and roping off the newly dug trench would have prevented my client from tripping over this road hazard and shattering his elbow.

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer