FELA – Railroad motorman’s seat collapses – Lumbar herniations requiring two surgical interventions – Seat collapses again upon return to work resulting in aggravation.
The male plaintiff railroad motorman in his 40s contended that the motorman’s seat situated in the locomotive was defective, resulting in its collapsing as the plaintiff was operating the train. The plaintiff maintained that the defective seat in the locomotive constituted a violation of the Boiler Inspection Act for which the defendant would be strictly liable and the defenses of lack of notice and comparative negligence would not be available.
The defendant would have contended that the PATH railroad system is an inter-urban transit system and that the car operated by the plaintiff did not constitute a locomotive under the BIA. The plaintiff countered during settlement negotiations that prior arguments by the defendant under similar situations had been unsuccessful. The plaintiff also contended that the defendant had knowledge from its motorman and engineers that the seats were not stable and the plaintiff would have also introduced an internal document discussing safety problems with the subject seats.
The plaintiff contended that he suffered herniations at L3, L4 and L4, L5 and required two separate surgeries. The plaintiff missed approximately one year from work and contended that within several months of his return, a second seat collapsed. The plaintiff contended that he suffered an aggravation which required additional epidural pain blocks in the lumbar region.
The plaintiff contended that in view of the two incidents, it was clear that the permanent residuals of pain and limitations were very pronounced. The plaintiff made no future income claims.
The case settled prior to trial for $500,000 and a waiver of the $103,000 medical/wage lien.
REFERENCE:
Plaintiff’s orthopedic surgeon: Cary Glastein from Tinton Falls.
K.B. vs. PATH. Index No.: 122399/93 consolidated with 116570-95; Judge Walter B. Tolub, September 2001.
Attorneys for plaintiff: Charles A. Cerussi of Budd Larner Gross Rosenbaum Greenberg & Sade in Manhattan and Brian R. Gunn of Rappaport Glass Greene & Levine in Melville.
