The plaintiff’s employer was one of many subcontractors working to complete construction of a new retail store in Boston. The first defendant was another subcontractor, hired by the general contractor to install specialized sheet metal to the front façade of the new store. The second defendant was the general contractor for the project and was responsible for the overall safety of the worksite.
According to counsel for the plaintiff, during discovery it was found that the general contractor had pressured all subcontractors to finish the job in time for a Thanksgiving store opening and an upcoming party to be held at the store.
The plaintiff contended that as he was grouting pavers, the sheetmetal workers moved their staging just behind where he was working. The plaintiff walked away from the area but allegedly was ordered back by the general contractor, as well as by his own supervisor. Although he knew it to be dangerous, the plaintiff followed orders and returned to grouting under the staging.
The plaintiff’s injury was caused when an employee of the first defendant inadvertently dropped a flatbar while standing on staging and reaching over his head to manipulate a piece of sheetmetal. The flatbar ricocheted off of the pavers and struck the plaintiff above the right eye.
A construction expert would have testified that, in compliance with the Code of Massachusetts Regulations and OSHA standards, no workers should have been allowed to work in the area surrounding the staging and that barricades or monitors should have been set up.
The plaintiff contended that the first defendant was negligent in that one of its employees carelessly dropped the flatbar from the staging. Also, the plaintiff claimed the first defendant allowed its workers to work on the staging above the plaintiff, failed to take the necessary steps to prevent tools from falling off the staging, and failed to utilize barricades or monitors to keep that area clear.
The plaintiff asserted that as the general contractor, the second defendant had a duty to maintain the overall safety of its work site. The general contractor had specific knowledge of complaints and requests to keep the area clear, but allegedly ignored these requests. The general contractor allegedly failed to take the necessary steps to prevent tools from falling off the staging to the ground below. Further, the general contractor was allegedly negligent in directly ordering the plaintiff to work in that area.
In contrast, the defendants contended that the plaintiff was comparatively negligent in positioning himself below the staging. The plaintiff admitted at deposition that it was a “cardinal rule” of safety that one does not work under staging. The plaintiff further admitted that he knew that the sheetmetal workers were on the staging working above him and knew of the possibility of falling tools.
The testimony of the sheetmetal workers on the staging was that they did not know that the plaintiff was working below them. Further, neither the general contractor not the plaintiff’s supervisor claimed to have had any memory of ordering the plaintiff to work in any particular area. Accordingly, the defendants contended that the plaintiff was more that 50 percent at fault for his injuries and therefore barred from any recovery pursuant to G.L.c.231, Sect. 85.
As a result of the impact, the plaintiff experienced lightheadedness and bleeding. He was rushed to a nearby hospital where he was treated and released. Subsequent MRI and CT scans were interpreted as “negative.”
Over the next several months, the plaintiff continued to experience severe headaches and dizziness from the impact, and was diagnosed with Post Traumatic Headache Syndrome. The headaches and memory problems precluded the plaintiff from returning to any type of work. Approximately 17 months after his accident, the plaintiff was placed inpatient at a rehabilitation hospital for treatment of his headaches.
Due to this recurring pain, cognitive difficulties and sedentary lifestyle, the plaintiff was diagnosed with major depression. He was transferred to a psychiatric facility for 10 days. Following discharge, the plaintiff required continuing treatment for his depression, headaches and shoulder injury.
Three-and-a-half years after his accident, the plaintiff was placed in a residential home for adults with head injuries. He remained in this placement for approximately 15 months.
The plaintiff was prepared to present an expert neurologist with a specialty in head injuries to explain that a diagnosis of concussion does not require that the patient actually lose consciousness. Rather, an alteration in consciousness is consistent with the diagnosis of Post Traumatic Headaches. The neurologist was expected to explain that the negative MRI and CT scans were helpful in determining that the reported symptoms were not caused by a pre-existing formation in the brain, such as a tumor, and while MRI and CT scans can be useful, they are not yet to the level of sophistication which would detect all or even most brain trauma.
The defendants were prepared to present the results of an evaluation of the plaintiff by a panel of four physicians, which concluded that there was no neurologic basis for the plaintiff’s symptoms and that the diagnosis of major depression was unwarranted. The panel evaluators concluded that a diagnosis of a closed head injury was not supported as the plaintiff never actually lost consciousness at the time of injury. The defendants also argued that the ongoing headaches were out of proportion to the original injury as the MRI and CT scans were negative.
After negotiations and mediation, the claim settled for $850,000.
Type of action: Negligence & Tort
Injuries alleged: Headaches, depression, psychosocial distress, impaired cognitive function, limited range of motion
Name of mediator: Raymond S. Ewer
Amount of settlement: $850,000
Date: August 2004
Attorney: Brian C. Dever, Keches & Mallen, Taunton (for the plaintiff)