$307,500 – Burst Compression Fracture
Amount : $307,500
Type of action: Admiralty
Injuries alleged: Burst compression fracture
Name of case: Plaintiff v. Kelley
Court/case #: Bristol Superior Court of Massachusetts, United States District Court, District of Massachusetts 09-00560
Tried before judge or jury (or mediation): Settled
Amount (specify award or settlement): $307,500.00
Date (of verdict or settlement): September 2011
Summary of Evidence
Plaintiff was best friends with the daughter of the Defendant, driver and owner of a 27 foot Boston Whaler Outrager called the DUNWURKIN.
Plaintiff, her best friend and several other passengers were on board the DUNWURKIN and the Defendant was operating the boat on a boat ride to Martha’s Vineyard on July 4. On the way back to Falmouth on the boat, the Plaintiff was sitting on the front of the boat and was holding onto the side of the railing and facing the stern, back of the boat. The Defendant was operating the vessel at a high rate of speed. The ride was uneventful until the Defendant hit a wake at full speed going directly into wake causing the Plaintiff to fly up in the air and slam back down on the bench to the same spot she was sitting causing the wind to be knocked out of her. Having the wind knocked out of her caused the Plaintiff to let go of the railing and grab her chest to catch her breath. A second or two later another wake was hit and she went up into the air higher than the last time and slammed down onto the deck landing on her bottom lower back area and immediately felt pain. Prior to hitting the wake, there was no warning by anyone nor did the boat slow down. It was a beautiful day with visibility for miles.
The Plaintiff was diagnosed with a L1 burst fracture, compression with kyphosis and retropulsion. The Plaintiff still experiences pain, numbness and tingling.
At the time of the accident, the Plaintiff was a passenger sitting on the boat doing nothing wrong. Liability focused on the negligence of the Defendant in that the Defendant was operating boat at a very high rate of speed over the wakes causing the Plaintiff to be thrown into the air, the Defendant failed to take the proper precautionary measures going over the wake to protect the safety of the passengers and failed to pay attention to his surroundings while operating the DunWurkin. Defendant failed to slow down, issue any warning or to approach the wake in a manner that would lessen the impact on the boat and passengers.
Defendant argued that the operator did not do anything wrong in that the wake came out of nowhere and he reacted appropriately. Not one witness testified the Defendant slowed down or gave a warning prior to hitting the wakes. Defendant also argued her pain was from prior problems with her back.
Damages focused on the Plaintiff’s past and future pain and suffering and mental anguish.