Results

$1.125 Million Traumatic Brain Injury

Type of Case: Traumatic Brain Injury from Slip and Fall at Construction Site

Result: $1,125,000 Settlement After 1 Week of Trial

Date of Settlement: July 29, 2024

Description of the Case:

This case settled after a week of trial, literally “on the courthouse steps” right before the start of the second week of trial (it was anticipated that the trial would take two weeks)

The injured plaintiff worked for a subcontractor at a construction site in New Bedford. As part of its construction contract, the defendant, general contractor, agreed to provide parking for workers, which was located inside the boundaries of the construction site. On January 28, 2021, the plaintiff, slipped and fell on black ice on the parking lot at the site, hit the back of his head, and was knocked unconscious. When he regained consciousness, his son in law, who was also working at the site drove him to a nearby local hospital, where a CT scan showed bilateral subarachnoid hemorrhages (bleeding on the right and left sides of his brain below the surrounding membrane). The emergency room doctor advised him to stay for a few hours so that a repeat CT scan could be performed to rule out further bleeding. Instead, because he was worried about contracting COVID, he left the hospital against medical advice and drove to a different hospital which had his CT imaging reviewed by a neurosurgeon who advised that it was safe to discharge him home.

After a few days, the injured plaintiff returned to his home in Florida (he owned the subcontracting company and would come to New England to work on more complex jobs). Over the next few weeks, he felt progressively worse, with headaches and trouble walking without stumbling. His wife took him to a local hospital where another CT scan showed more extensive bleeding in his brain. He underwent emergency brain surgery to place two drains to relieve the pressure on his brain. He was discharged home after five days in the hospital.

Plaintiff was 64 years old at the time of his injury and 67 years old at the time of trial. As a result of his traumatic brain injury he suffers from permanent cognitive problems such as forgetfulness, lack of focus and confusion. His personality also changed as he went from being patient, friendly and outgoing to getting angry more easily and snapping at people. At the time of his injury, his main role with his business was as an estimator who prepared the bids for all the big contracts. As a result of the effects of his injury, he prepares less estimates, makes mistakes and his business had to pivot away from bidding on the most profitable contracts. Unfortunately available records made it difficult to quantify the extent of this loss. As a result of the fall, he also exacerbated a prior problem with migraines and with lower back and neck pain for which he had previously had surgery. His wife also brought a claim for her loss of consortium.

Plaintiffs called the defendant’s director of operations as a witness at trial. Under plaintiffs’ counsel’s questioning, he agreed that the defendant had a duty to prevent unsafe conditions at the construction site and that black ice was a potentially unsafe condition. Through his testimony and by playing portions of the video deposition of defendant’s on-site job supervisor, plaintiff’s counsel established that at no time during the winter of 2020-2021 did defendant ever apply salt, sand or ice melt to the parking lot and that prior to plaintiff’s injury, defendant did not even keep any salt, sand or ice melt at the construction site. Immediately following the plaintiff’s injury, defendant’s on-site supervisor inspected the area where plaintiff fell, verified that there was black ice there and went to a local Lowe’s to buy some ice melt which he then applied by hand to the spot.

Defendant contested both liability and damages. Defendant argued that construction sites are fundamentally different from other workplaces due to their unavoidable dangers and because of this workers at construction sites have to exercise a greater degree of “situational awareness” of their surroundings. Defendant was prepared to argue that plaintiff was comparatively negligent for not watching were he was walking and not taking necessary precautions for his own safety. Defendant’s witnesses also testified, based on site photos, that the parking lot was generally wet and not icy, except for the shaded area where plaintiff fell and therefore defendant had made reasonable efforts to keep the parking lot free of unsafe ice.

Defendant was prepared to offer expert testimony from a neurologist that plaintiff was no longer suffering from any effects from his traumatic brain injury. Although he conceded that plaintiff had suffered a concussion and bleeding on the brain as a result of hitting his head, the defense neurologist testified at deposition that plaintiff’s symptoms should have resolved shortly after his brain bleeds were drained and that any post concussion symptoms would have resolved in a matter of months. He testified that there was no objective evidence plaintiff had any on-going symptoms or exacerbation of previous migraines, neck or back problems. The defendant also was prepared to offer testimony from an expert neuropsychologist that plaintiff had failed validity tests during his neuropsychological testing which indicated the neuropsychological test results were invalid and that he was possibly malingering.

The case settled after one week of trial, “on the court house steps” just before the second week of trial was about to start. Plaintiffs had already presented testimony both from plaintiff’s treating neurologist and an expert neuroradiologist, as well as liability witnesses and was prepared to call a neuropsychologist, a construction safety expert, a meteorologist, and before and after witnesses as well as the injured plaintiff and his wife. Plaintiffs’ counsel also successfully brought a motion in limine to exclude any reference to the injured plaintiff leaving the first hospital against medical advice. Defendant also pursued third party claims for contractual indemnity against plaintiff’s business, which were severed and stayed during trial and did not affect plaintiffs’ recovery.