This was an action under the Jones Act for negligence and general maritime law for unseaworthiness against the Defendant Shipowner.
Plaintiff, the cook, was born on October 9, 1954. She was divorced in 2008, has three daughters between the ages of 30 and 40. She completed 11th grade in high school, attended beauty school, and worked at St. John’s Hospital as a clerk for 22 years.
She commenced employment with Defendant in 2010.
All of her job evaluations were above average when comments were written, they say as follows:
June 23, 2011: “Would work with again.”
August 21, 2012: “[Plaintiff] has done an outstanding job while the 2 weeks she has been on the vessel. Gets along with everybody. Meals are always hot and ready. I would use her as a relief cook anytime.”
September 19, 2012: “[Plaintiff] has done well since boarding the Caroline N. All meals are prepared on time. Nutritional guidelines are followed. She gets along with crewmembers. Keeps work station clean and orderly.”
October 11, 2012: “Done a good job. Meals on time and well-prepared. Very nice and likeable attitude.”
Liability in this case is a virtual certainty.
On February 3, 2014, Plaintiff was in the galley attending to her cooking duties. The vessel was stuck in, and ramming ice. Plaintiff thought the vessel rammed some ice, she lost her balance and broke her wrists. In the process, an oven door, which had been previously reported as defective, fell open and hit her on her left arm. Plaintiff initially posited her negligence claim on a failure of the pilot to broadcast “watch the bump” over the vessel PA system before ice was struck in order that she could brace herself. It is a common safety procedure, “watch the bump”. But, with discovery, it was learned, that the reason the vessel abruptly struck an object, in fact a barge, is because the engines did not engage. The forge of the impact was so great that the damage was described in the Coast Guard Report from the impact as:
“A 6-8” crack approximately 6” to the right of port corner of bow of rake approximately 4” from top of headlog.”
A description of casualty in the Coast Guard Report reads:
Had unfaced boat to break ice around tow to make path for voyage. When going back to re-face to tow, engine on boat did not engage in adequate time resulting in boat landing on starboard lead barge. Barge sustained crack in bow of rake; no damages to any other barges in tow. [The vessel’s] starboard towknee pads dented approximately 1”.
Cook reported when the boat struck the barge, she fell landing on her right arm and the oven door dell open striking her left arm. Saliva alcohol testing was performed on the vessel; results were negative. Drug testing on injured employee perform in conjunction with this incident. Drug results are unknown at this time.
As for corrective safety measures, none are recommended at this time.”
When a piece of equipment fails on the ordinary course of use that is an unseaworthy condition. Also, where there is an allision – a vessel striking a stationary object – there is a presumption of negligence.
Therefore, the only question in this case was the quantum of damages.
Plaintiff had surgery on one wrist and the other broken wrist was treated conservatively. During treatment, she had a stroke, and also sustained another fall where she sustained a left distal radius fracture on June 9, 2015. The stroke resulted in disqualifying physical disability. Her final visit with her treating orthopedic doctor was October 30, 2015 and he related her subjective history as follows:
“[Plaintiff] is here for follow up bilateral wrist pain. She sustained bilateral distal radius fracture initially when she was walking in a tugboat at work on Feb 3, 2014. She had right distal radius open reduction and internal fixation performed on Feb 10, 2014. The fracture in the left distal radius was minimally displaced which was treated with nonsurgical treatment. She had extensive [therapy] on both wrists after surgery. Her therapy was discontinued for a while after surgery due to a stroke episode several months ago. Unfortunately she sustained left distal radius fracture after a fall on June 9, 2015. Her left distal radius fracture was treated with nonsurgical measures again. She has been doing home exercise over the past several months. She said that pain in both wrists was intermittent, and aching 1-2 on pain intensity scale. She said pain in her wrists was aggravated with heavy use of her hands. The patient presented to the Clinic by herself today.”
His plan at that time was:
“Clinical and radiographic finding were discussed with patient today. It appeared that the fracture in the right distal radius has been healing well. Regarding left distal radius/ulnar fracture, she was advised to continue home exercise for range of motion, stretching, and strengthening. She has been over one year after initial work related injury. I think that her right wrist has reached maximum medical improvement. We will order functional capacity test in order to establish the final recommendation for her work status. She will return to our clinic in 4-5 weeks. She will continue to be out of work at this time. The patient understood that she will call or return if she has any questions or concerns.”
Plaintiff’s last two full years of work with Defendant were 2012 and 2013 in which she made $33,199.00 and $23,409.50, respectively. Up to the point of maximum medical improvement (October 2015), Defendant paid Plaintiff partial wages.
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