February 18, 2010
Worker Struck By Crane’s Load Awarded $1.7M
On Jan. 18, 2005, plaintiff Ernesto Tamez, 59, a welder, was working for a turnaround contractor at BP America Inc.’s oil refinery in Texas City. Tamez was acting as a signalman and rigger, attaching an oil burner to the boom of a crane. After Tamez attached the load, the crane operator lifted the boom, and the load swung like a pendulum into Tamez. The operator was never identified, but Tamez claimed that the operator was an employee of Maxim Crane Works Inc., of Bridgeville, Pa.
Tamez sued Maxim, alleging that the operator, before raising the boom, moved it such that the load line was out of plumb and the load was not directly below the tip. Therefore, when the operator raised the boom, the load swung like a pendulum.
BP was initially a defendant, but Tamez nonsuited it about two years before trial.
In deposition, but not at trial, Tamez testified that the crane operator had on coveralls with the BP logo. His attorney noted that the men were 40 feet apart at the time of the incident.
Maxim denied that the operator moved the boom as Tamez alleged. According to the defense, Tamez failed to make sure that the load line was lined up with the crane before the lift.
Maxim further argued that Tamez did not meet his burden to prove that it was the crane operator’s employer. Other contractors, including Tamez’s employer and BP, also employed crane operators at the site. Maxim also denied having any documentation of the incident and said its first notice of the incident was this suit.
The load swung into Tamez and pinned him against a handrail, he said. He claimed rib pain, bulging or herniated cervical and lumbar discs and a torn rotator cuff. He eventually underwent a cervical fusion, a lumbar fusion, and surgical repair of the rotator cuff.
Tamez continued working after the incident. He first saw a doctor that February, and a company doctor said Tamez could continue to work. In May, Tamez stopped working and started physical therapy. When it did not help, he underwent surgery.
Tamez claimed that he would need future physical therapy, a TENS unit, medication, diagnostic imaging and psychological counseling. On one occasion, he saw a counselor, who recommended additional counseling for depression. Tamez did not follow up, although he said he was depressed at not being able to work. He also said his normal daily activities were limited by his injuries.
Tamez’s past medical bills were $287,000, and he sought $230,000 in future medical expenses. For lost earning capacity, he sought $280,000 in the past and $120,000 in the future. He also claimed past and future pain and suffering and physical impairment.
His wife of 40 years claimed past and future loss of consortium and household services.
In total, the plaintiffs sought $1.9 million.
The defense argued that the back operation was unnecessary or that, if it was necessary, it was unrelated to this incident and was necessitated by 60 years’ wear and tear and preexisting degenerative changes.
Neither plaintiff spoke English.
The jury found Maxim negligent, but not BP, Tamez or Tamez’s employer. The damages were $1.55 million for Tamez and $170,000 for his wife, the jury found.
Ernesto Tamez
$300,000 Personal Injury: Past Medical Cost
$250,000 Personal Injury: Future Medical Cost
$100,000 Personal Injury: Past Physical Impairment
$100,000 Personal Injury: Future Physical Impairment
$200,000 Personal Injury: Past Lost Earnings Capability
$100,000 Personal Injury: FutureLostEarningsCapability
$200,000 Personal Injury: Past Pain And Suffering
$300,000 Personal Injury: Future Pain And Suffering
Maria Tamez
$125,000 Personal Injury: Past Loss Of Consortium
$25,000 Personal Injury: Future Loss Of Consortium
$5,000 Personal Injury: Past Loss Of Services
$15,000 Personal Injury: Future Loss Of Services
Tamez’s recovery will be reduced by about $40,000 based on some medical bills not being paid or incurred.
