Verdicts & Settlements

Physical Injuries Essentially Resolve With Numerous Surgeries

$844,000

In this action, the male plaintiff, a 41 year old PATH conductor, contended that the defendant workers in the employ of Conrail negligently failed to secure an approximate two pound metal clip used on the tracks of an overpass on which they were working. The plaintiff, who was on a train proceeding under the overpass, also contended in the FELA aspect that the railroad employer acted improperly in failing to utilize safety glass, which was available. The plaintiff contended that as a result, the clip crashed through the window and struck him in the chest, propelling him back against the wall of the train car. The plaintiff contended that he sustained bilateral TMJ dysfunction, bilateral carpal tunnel syndrome, an inner ear fistula and ulnar nerve entrapment, all of which required surgery. The plaintiff also contended that he was very vulnerable to emotional trauma because of prior stressor events, including rescuing people in the World Trade Center after the bombing, and his observations of an individual on the tracks who had committed suicide by running in front of a train two months before the subject incident, contending that the superimposition of the subject incident on his already fragile emotional state caused a very severe Post Traumatic Stress Disorder.

The plaintiff related that as the train traveled under the overpass while Conrail employees were working, the metal clip suddenly crashed through the window. The plaintiff contended that the Conrail employees negligently failed to properly secure the device, resulting in its falling from the overpass. The plaintiff contended that these defendants should have secured this clip, especially since no fences or other barricades were present.

The defendant Conrail denied that the clip fell and contended that it was likely that an unidentified vandal had thrown the device from the tracks. The defendant’s expert engineer contended that if the device, which weighs 2-3 lbs., simply fell some 10-15 feet, it would not have had sufficient force to crash through the glass notwithstanding that the window was not constructed with safety glass. The plaintiff countered that a transit officer who interviewed the workers who were present at the time of the incident occurred found no evidence of any vandals seen by these workers, and the plaintiff argued that it was doubtful that an unidentified individual was responsible for the incident. The plaintiff also maintained that it was clear that the clip fell with sufficient force to crash through window and may have been knocked from the overpass by a Conrail worker.

The plaintiff also contended that his railroad employer should have provided safety glass, which has been available for 15 years, and which could have been installed at reasonable cost. The plaintiff had contended that this defendant’s failure to use safety glass violated both the FELA and the Federal Boiler Inspection Act (FBIA), which requires that all locomotives be equipped with safety appurtenances and which also provides for strict liability in the event of a violation. The defendant PATH contended that it had obtained a waiver from the Federal Railroad Administration in 1980, exempting them from the requirement to use safety glass on this train because the train ran underground most of the time. The defendant moved for summary judgment, arguing that since it was exempt, there was no basis for liability. The Court denied this motion and held that the jury would be permitted to consider a violation of the FBIA.

The plaintiff contended that the trauma of the subject incident resulted in bilateral TMJ dysfunction requiring surgery on each side, bilateral carpal tunnel syndrome, which also required two surgeries, an inner ear fistula which was treated surgically, and ulnar nerve entrapment on the right side which also required surgery. The surgeries were performed over an approximate two-year period and these conditions have substantially resolved. The plaintiff contended, however, that the incident caused a very substantial Post Traumatic Stress Disorder which is manifesting in anxiety, depression, nightmares, flashbacks of the event and difficulties with memory and concentration.

The plaintiff’s psychiatrist would have testified that the plaintiff was a very fragile vessel because of two prior incidents causing extreme emotional reactions, including being present to help in the rescue following the World Trade Center bombing, and a more recent incident in which an individual committed suicide by jumping in front of a train and in which he was the first to find the body. The plaintiff contended that these incidents rendered him much more vulnerable to such a reaction occurring when the clip crashed through the window and struck him. The expert maintained that the plaintiff will require psychotherapy for the foreseeable future and offered a guarded prognosis.

The defendants contended that the prior incidents were the primary cause of any continuing complaints. The plaintiff countered that he was able to recover relatively quickly from the prior incidents, had undergone short term treatment only, and had been able to return to work relatively quickly. The plaintiff contended that he has not returned to work because of the severe anxiety and maintained that he is permanently unemployable. The plaintiff would have made a claim for approximately $20,000 per year after deducting taxes and retirement benefits.

The case settled prior to trial for $844,000.

REFERENCE
Plaintiff’s professional engineer: Joseph Thomson from South Hampton, PA, Plaintiff’s professional engineer (on safety glass): Jack Krafchick from Mt. Arlington, Plaintiff’s hand surgeon: Said Samra from Holmdel, Plaintiff’s ENT specialist: Anthony Jahn from Roseland, Plaintiff’s psychiatrist: Emanual Hriso from South Amboy, Plaintiff’s psychologist: Rich Rapkin from Somerville.
A.M. vs. Conrail and PATH. Civil Action no. 96-2735; Judge Dickinson R. Debevoise, 11/98.
Attorneys for plaintiff: Charles A. Cerussi of Giordano, Halleran & Ciesla in Middletown.

COMMENTARY:
The defendant Conrail, whose employees were working on the overpass, denied that the clip fell because it was not properly secured and argued that an unidentified vandal probably purloined the equipment and threw it at the train, arguing that the 2-3 lb. Clip would not fall with sufficient force to break even the non-safety glass. The plaintiff countered this position by stressing that none of the employees in the immediate vicinity had seen a vandal or reported such a vandal to the investigating police officer, arguing that it was clear that the defendant’s position should be rejected. Additionally, the plaintiff had included a count under the FBIA regarding the absence of safety glass, arguing that the failure to comply with the act would result in strict liability against this defendant. The railroad employer moved for summary judgment on this issue, stressing that it had been exempted from the requirement for such safety glass in 1980 by the Federal Railroad Administration. The plaintiff, who maintained that the railroad could nonetheless be held strictly liable under the FBIA for the failure to take this precaution, argued that the FBIA is not dependent upon regulations, that although a violation of regulations would constitute a violation of the Act, the jury could nonetheless find, from the totality of the circumstances, that it was unreasonable to fail to replace the glass in the 15 year period since the waiver was obtained. In this regard the plaintiff argued that the proofs included evidence of prior vandalism on the PATH tracks and that in view of this factor and the low cost of the replacing the glass in the relatively few trains exempt, that the railroad clearly should have done so. The Court denied the defendant’s pre-trial motions and held that the plaintiff could prove a violation of the FBIA notwithstanding the waiver.

Regarding damages, it is felt that the traumatic nature of the incident in which a metal clip crashed through the window and struck the plaintiff, knocking him back against the train car wall, would probably have evoked a strong jury response in-and-of itself. Additionally, the plaintiff, who contended that he sustained a very significant Post Traumatic Stress Disorder, would have argued that the prior stressor events, including participating in rescues at the World Trade Center bombing and responding to a suicide on the tracks one month before the subject incident, rendered him a very fragile vessel and that the superimposition of the subject trauma on this fragility would be expected to result in a very significant reaction. Finally, although the physical injuries ultimately, essentially resolved, the plaintiff stressed that he required multiple surgeries, including bilateral carpal tunnel release surgery and TMJ operations, as well as surgery to treat an inner ear fistula and surgery for a right sided ulnar nerve entrapment, stressing that his overall recuperation was clearly very difficult and would warrant significant compensation.