Seymour Gutin while driving north on the East River drive in Manhattan with his wife had their windows open. It was a dry day that is why they had it down. After passing the 95th street, he notices pieces of concrete came in through his open window and one of them hit his eye. Near the 96th street intersection was the time he realized that he was bleeding. He hurriedly drove to the 116th street, which was the nearest exit and asked a policeman for help. It was found out by a reporter, that the police officer drove Mr. and Mrs. Gutin to the hospital where they removed his eye because of the extent of the damage.
The car was examined by the police, and they found four pieces of broken concrete. A suit was filed against Frank Mascali & Sons, Inc. They are the company that was incharge of the construction of an overpass between East 92nd Street and East 99th Street along the East River Drive. Checking on the contract, a Lawyer said that they were paid to make sure of the safety in the highways with respect to the construction and maintaining the traffic. There was a power house that was in that location which was part of their contract to demolish and use any product that can be used as filling for the road. Some of the by-products needed to be broken to smaller pieces before they can use it.
A Queens policeman assigned to the corner where the crane was used to break the concrete to smaller pieces testified that they utilized the ball to pound on the concrete to break it. A witness mentioned that the officer could cite a similar incident two weeks before what happened to Mr. Gutin because he had it recorded. He said he had warned the operating of the crane and some supervisors about the method. In the examination Frank Mascali & Sons, Inc.’s construction engineer confirmed the use of the ball to get the product they needed. He was not presented in the trial. In the trial, the concrete pieces found in Mr. Gutin’s car were also entered into evidence. The defense presented a receipt to counter the allegations. The receipt said that the delivery was delayed because the crane was not working. There were three signatories in the receipt but not one of them was the one who wrote that the delay was due to the malfunction of the crane. The crane operator signed a statement that he was operating the crane on the day of Mr. Gutin’s accident and noticed a blue car, the color of Mr. Gutin’s car near the intersection. The operator though says he can barely recall it. He testified though that he wouldn’t sign the document unless he was sure.