$5,900,000 – Traumatic Brain Injury Settlement

Award Amount:  $5,900,000

TRIAL REPORT FORMS

Type of action: Admiralty/Maritime

Injuries alleged: Traumatic brain injury; multiple fractures of numerous bones and internal injuries; cognitive and emotional problems

Name of case: Withheld

Court/case #: Withheld

Tried before judge or jury (or mediation): Settled

Special damages: Damages for future lost wages, future medical treatment and past and future pain and suffering and mental anguish

Amount(specify award or settlement): $5,900,000.00

Date (of verdict or settlement): August 2009 Attorney for plaintiff(s) and city of office: Carolyn M. Latti, David F. Anderson, Latti  & Anderson LLP, Boston, MA 02109

Attorney for defendant(s) and city of office: Withheld

Person who can verify report, including telephone and fax numbers (not for publications): Carolyn M. Latti

Plaintiff, 50 years old, was employed on a coal-carrying vessel as a bosun for numerous years. A bosun helps the officers supervise the deck crew. At a certain port, the tanker used a portable gangway, called a brow, for getting on and off the vessel. The brow acted as a bridge between the vessel and the platform tower on the dock. When rigging the brow to the tower platform, it was the practice on Defendant’s vessel to remove an 8 foot section of the vessel’s railing. Given the width of the brow, this resulted in a 2-3 ft unprotected opening in the vessel’s railing on either side of the brow.

The procedure for bringing in the brow on the vessel had been in use for several years. The Defendant would have three to four crew members on each side of the brow line up in a row starting from the unprotected opening at the edge of the deck and extending toward the center of the vessel. On the count of three, 6-8 crew members would lift the brow, pull it inboard and set it down. This repeated until the brow moved to its storage position near the center of the vessel. During the course of this procedure, two of the crew members would be working at the edge of the deck adjacent to the 2-3 foot unprotected opening in the vessel’s railing.

The Plaintiff injuries occurred while in the process of bringing in the brow. The Plaintiff has no memory of how the accident occurred. From testimony of the crew, we learned that the Plaintiff and the other crew lined up alongside the brow. The Plaintiff stood at the edge of the deck next to the unprotected opening in the railing.

Three crew members lined up on his right and four crew members similarly lined up on the opposite side of the brow. The brow was brought most of the way onto the vessel. This was to the point where the crew had to reposition to lift the dock end of the brow. Somebody, yelled, “one – two – three” and the brow started moving after the count of two. The Plaintiff lost his balance and started falling toward the unprotected opening in the rail. The Plaintiff tried to catch himself but was unable to do so. He then fell over the side of the vessel, landing on the dock approximately 35 ft below. As a result of the fall, Plaintiff broke numerous bones in his body, suffered a variety of internal injuries with damage to various organs and doctors diagnosed him with a severe traumatic brain injury with severe frontal lobe injury.

Liability focused on the failure of the Defendant to protect its crew from falling, a known hazard in any industry. Plaintiff alleged that the Defendant was negligent in that it created an 8 ft opening in the rail of the vessel in order to place a 3 ft brow. Thus, it created a 2-3 foot unprotected opening in the railing at the edge of the deck on either side of the brow. This 2 – 3 ft unprotected opening in the rail at the edge was adjacent to a location where crew members were required to work. Therefore, it created an unreasonable risk that a crew member would fall overboard and sustain serious injury or death. It was claimed that Defendant was negligent in not identifying the fall hazard associated with bringing in the brow and protecting the crew members from this risk.

Defendant’s management did not take reasonable steps to inspect, identify, and eliminate foreseeable hazards on the vessel. Additionally, where the Defendant could not eliminate those hazards, the Defendant failed to take reasonable steps to provide equipment and establish procedures so as to protect its workers from a fall. Evidence was going to be presented that Defendant did not establish and/or enforce any type of job safety analysis or safety monitoring program to examine and inspect both routine tasks and new procedures for fall hazards. In fact, Defendant approached safety on the vessel in a reactive manner. This means they would only analyze a procedure after an accident or injury occurred. Thus, they were not proactive in preventing accidents.

Plaintiff’s claim of unseaworthiness focused on that the vessel had an unprotected opening in the rail in which a crew member could fall through when the brow was in place. Additionally, the vessel was unseaworthy in Defendant’s failure to provide and require equipment such as a safety net, safety harnesses or a temporary railing that could protect and prevent crew members from falling over the edge.

Defendant claimed that Plaintiff was responsible for the operation as bosun. Additionally, since no prior accident occurred over the years, the procedure used was therefore safe. Furthermore, the Plaintiff was at fault for failing to use an available safety harness on the vessel. All officers of the crew testified that Plaintiff did nothing wrong to cause his accident. Additionally, there was no oral or written policy, practice or requirement to use any type of fall protection equipment, like safety harnesses.

Plaintiff underwent medical treatment for approximately two years for both his neurological and orthopedic injuries. Plaintiff’s orthopedic injuries resolved resulting in limitations with his left and right side. Plaintiff has neurocognitive impairments. Because of the area of his brain that was injured, the Plaintiff suffers from severe anxiety, decreased patience, impulsivity, mood disturbances, and explosive anger. This severely limits his interaction with his family and society. Plaintiff’s physical and emotional restrictions significantly impacts Plaintiff’s ability to function as he did prior to the accident.

Plaintiff was unable to return to any type of work as a result of the injury. Plaintiff expected to present evidence of a net loss of earning capacity of $1,000,000.00 in addition to future medical treatment ranging from $1,100,000 to $3,000,000.00 if it was necessary to institutionalize the Plaintiff.

The case settled the morning of first day of trial.