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Two employees were compensated $2.7 million for injuries suffered when a portable crane freewheeled while being “hi-railed” on subway tracks

Two employees were compensated $2.7 million for injuries suffered when a portable crane freewheeled while being “hi-railed” on subway tracks.

The defendant was the distributor of a European-manufactured crane. The defendant modified the crane to accommodate the narrow tracks of the Boston subway system. The crane was designed to lift itself from rubber tires onto steel wheels that would operate on the MBTA rails, a process known as hi-rail mode.

On the date of the accident, as the crane was placed into hi-rail mode, the brakes did not have sufficient friction due to the modification. The lack of friction allowed the machine to freewheel down the track in the path of two workers.

The first employee was hit and pushed out of the way. He suffered a fracture to his spine and multiple abrasions and lacerations. After approximately six months, he had recovered sufficiently to return to light-duty work.

The second employee was struck by the crane and dragged several hundred feet causing serious and significant injuries, including a below-the-knee amputation.

The machine was manufactured in Europe and shipped to the United States for distribution by an American company. National experts were retained, and several out-of-state depositions were taken. In addition, a video was made reconstructing the hi-railing process. In this video, the machine was depicted as being freewheeled while being hi-railed on a sloped surface, demonstrating a defective design.

The plaintiffs were confronted with the Sophisticated Users Doctrine, claiming the employer knew or reasonably should have known of the crane’s danger. If successful, this would have relieved the manufacturer of liability for failure to warn. Counsel argued that the danger presented by the crane was not obvious to the end users and that a warning would have reduced the likelihood of injuries. Therefore, the defendant owed a duty to warn.


With significant coordinated effort from the liability and workers’ compensation attorneys, the cases were settled. The first employee received approximately $250,000 in workers’ compensation benefits, an MBTA pension and a $300,000 third-party settlement.

The second employee received a $1.7 million settlement and approximately $450,000 in workers’ compensation benefits, SSDI benefits and a full MBTA pension.

The case was referred to Keches & Mallen by outside counsel, who remained involved and communicative throughout the litigation.

Type of action: Products liability, workers’ compensation

Injuries alleged: Fracture to spine, multiple abrasions and lacerations (plaintiff 1); loss of leg, lacerations, abrasions, loss of arm function (plaintiff 2)

Name of case: Withheld

Court/case no.: Withheld

Tried before judge or jury: N/A (mediated)

Amount of settlement: $300,000 (plaintiff 1); $1.69 million (plaintiff 2); combined settlements and workers’ compensation benefits totaled $2.7 million

Date: May 2007

Attorneys: Brian C. Dever, Keches & Mallen, Taunton (for plaintiffs’ negligence & tort claim), and Joseph F. Agnelli, Keches & Mallen, Taunton (for plaintiffs’ workers’ compensation claim)

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