Massie and Shelley Washington v. Western Manufacturing Co., Inc. and James P. Dow & Associates, Inc./Western Manufacturing Co., Inc. v. City of Rochester/James P. Dow & Associates, Inc. v. City of ...

Massie and Shelley Washington v. Western Manufacturing Co., Inc. and James P. Dow & Associates, Inc./Western Manufacturing Co., Inc. v. City of Rochester/James P. Dow & Associates, Inc. v. City of Rochester

FRACTURED TIBIAL PLATEAU AND SUBSEQUENT RELATED FRACTURES

employed by city

NY

$2,170,000 for Massie W.

$2,170,000.00

X/40-17 PRODUCT LIABILITY DIESEL FUEL USED TO CLEAN MACHINE RESULTS IN EXPLOSION FRACTURED TIBIAL PLATEAU AND SUBSEQUENT RELATED FRACTURES

Massie and Shelley Washington v. Western Manufacturing Co., Inc. and James P. Dow & Associates, Inc./Western Manufacturing Co., Inc. v. City of Rochester/James P. Dow & Associates, Inc. v. City of Rochester 11047/89 2-week trial Verdict 1/22/93 Donald J. Wisner, Monroe Supreme

VERDICT: $2,170,000 for Massie W. Breakdown: $70,000 for medical expenses; $150,000 for past lost earnings; $250,000 for past pain and suffering; $700,000 for future lost earnings; $1,000,000 for future pain and suffering. $345,000 for Shelley W. Breakdown: $90,000 for past loss of services; $255,000 for future loss of services. The case settled for $ 2,000,000 during the pendency of post-trial motions.

Pltf. Atty: A. Vincent Buzard, Rochester

Deft. Atty: Louis D’Amanda of Chamberlain, D’Amanda, Oppenheimer & Greenfield, Rochester, for James P. Dow

Michael A. Reddy of Bayer & Smith, Rochester, for Western Manufacturing

Michele DiGaetano, Asst. Corp. Counsel, Rochester, for City

Facts: Pltf., a 42-year-old asphalt raker employed by City, claimed on 12/9/86 that he was told by his foreman to pour diesel fuel into an asphalt recycling machine about 15 minutes after it was shut off. This resulted in an explosion, throwing Pltf. into the air. The asphalt recycling machine was manufactured by Deft. Western Manufacturing and distributed by Deft. James P. Dow. Pltf. claimed that Deft. James P. Dow instructed the City that diesel fuel should be used to clean the machine. Pltf.’s expert testified that the machine operated at a temperature of 800- 900?. He also testified that diesel fuel could ignite at 100? with a source of ignition, such as static electricity, at temperatures in excess of 490?. Pltf. contended that using diesel fuel to clean the machine was dangerous and defective and that a non-flammable solvent should have been recommended by Deft.

Deft. James P. Dow contended that the City had used diesel fuel in the past years on other equipment and understood the risks. City claimed that the distributor had provided them with the instructions on cleaning the machine with diesel fuel. Defts. argued that Pltf. was contributorily negligent in pouring the fuel into the machine while it was still hot.

Injuries: comminuted tibial plateau fracture. Pltf. later sustained a severe comminuted femur fracture of the same leg as a result of his prior knee injury. Approximately 1 year later, his femur was fractured again due to the stiffness of the knee. Pltf. was out of work for 2 years and returned for 6 months. Pltf.’s rehabilitative expert testified that his employment opportunities were severely limited. Pltf. Experts: Dr. Richard Andree, Ph.D., safety expert, Manhattan; Edmond Provder, vocational rehabilitation, Manhattan; Dr. Thomas Kershner, Ph.D., economist; Saratoga Springs.