Photo courtesy of SchindlerLift1874/Wiki

In Cupo v. Fobco Construction and Otis Elevator, a man who fell down an elevator shaft in an under-construction building at Kean University settled his Middlesex County suit for $3 million on Dec. 2.

Plaintiff Michael Cupo sued two firms charged with building a multipurpose academic building at the university after he fell down an elevator shaft in 2016 that he contends was ill-lit and negligently operated.

The case settled before trial, following six hours of mediation with Middlesex County Superior Court Judge Jamie Happas on Nov. 18.

Of the $3 million settlement, Fobco Construction paid $1.85 million, third-party defendant Sloan and Co. Inc. $900,000, and Otis Elevator Co. paid $250,000 to Cupo, according to his attorney, Raymond Gill Jr., of Gill and Chamas in Woodbridge.

According to Gill, Fobco, of Passaic, had secured a $44 million contract with Kean as the university's general contractor, and Otis, of Moorestown, was hired to install elevators in the new building.

Cupo, of Milltown, 55 at the time of the accident, was a safety foreman for Sloan and Co. of Mountain Lakes, the carpentry contractor for the just-completed, six-story building that was awaiting state inspection approvals. On May 13, 2016, Cupo and a co-worker were wheeling a set of wooden doors through the service entrance leading to the building's service elevator. Cupo had been told by the Fobco job site superintendent, Michael Shea, that the service elevator was parked on the first floor with its doors held open by a blue Styrofoam block, and that it was ready for Cupo to use, the suit claimed.

The suit claimed that Otis, per its contract, could not use such Styrofoam blocks unless there was a paid Otis elevator operator on-site, which there wasn't.

As Cupo pried the elevator's two doors apart, he reached in with his right hand and began to step into the elevator when he fell five feet down the shaft, fracturing his skull, right wrist and multiple facial bones, according to Gill.

Fobco was represented by Gerard Hanson of Hill Wallack in Princeton. Hanson was not available to comment.

Otis was represented by Christine McGuire of Turner, O'Mara, Donnelly and Petrycki of Cherry Hill. McGuire couldn't be reached for comment.

Gill said discovery revealed that Fobco violated the provision requiring an on-site operator and had used the elevator at all stages of construction without an operator, who would have cost in excess of $200 an hour.

"They were not supposed to do what they did," Gill said in a phone call. "The general contractor was cheating by not paying for an operator."

According to Gill, discovery further revealed that Fobco had created an unlocking mechanism from a scaffolding key in order to open the elevator's doors and use the Styrofoam block in order to bypass having an Otis operator on-site.

Otis employees last left the building two days before Cupo's fall and had secured the elevator through a locking mechanism, so only an Otis employee could turn the power back on. On May 13, the elevator was located on the second floor, not the first floor, Gill said.

Due to the dark hallway and alleged insufficient lighting, Cupo stepped into and fell down the elevator shaft, Gill said. "He assumed the elevator was on the first floor," Gill said. "He went into a dark elevator without looking."

Fobco contended that it had instructed Otis to perform the locking procedure and leave the elevator on the second floor so that a plumbing subcontractor could access the building on May 12 to install a sump pump in the elevator pit. Otis contended that that never happened, and that the elevator was locked out with the car stationed on the first floor, according to Gill.

The defendants claimed Cupo's comparative negligence in failing to ensure that he was stepping into the elevator car, Gill said.

The suit claimed Fobco was negligent in not ensuring that the elevator car was where Cupo was told it would be, and that Otis was also negligent in the manner in which its employees locked out and tagged out the elevator.

After his fall, Cupo was taken to University Hospital in Newark; experienced a slight brain bleed; sustained multiple facial fractures; and was treated at a brain and spine center for several months. He "didn't get treatment for three years because workers' comp wouldn't cover it," Gill said, noting that Cupo's total workers' compensation lien was about $16,000.

Cupo, now 58, went back to work five weeks after the accident, but was forced to retire early  due to difficulties with reading blueprints, his balance and other issues related to the traumatic brain injury, according to Gill.

"The $3 million settlement was fair because he had a legitimate brain injury and had to retire early," Gill said. "Three million dollars will allow him some security in his retirement years. He will be able to pay off his house, though it left him with cognitive deficits with short-term and long-term memory issues."