United States District Court, D. Massachusetts
DENISE WOOLF, DARREN WOOLF, and DARREN M. WOOLF, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR
A. O'Toole, Jr. United States District Judge
plaintiffs, Darren M. Woolf (“Darren” or
“Darren Jr.”), Darren Woolf (“Darren
Sr.”), and Denise Woolf (“Denise”),
brought this suit against the United States of America
pursuant to the Federal Tort Claims Act (“FTCA”)
for damages resulting from an injury to Darren Jr. that
occurred at an event organized by the U.S. Army National
Guard. The Court conducted a five-day bench trial on Darren
Jr.'s personal injury negligence claim (Count I) and his
parents' derivative claims for loss of consortium,
emotional distress, and care and support (Counts II and III
for Denise and Darren Sr., respectively). After the trial,
the parties submitted proposed findings of fact and
conclusions of law and presented closing arguments. Having
considered the evidence and arguments of the parties, the
Court now finds and concludes as follows.
Findings of Fact
Sr. is a Sergeant, First Class, with the U.S. Army National
Guard, and served at the relevant time in the 181st
Engineering Company based at Camp Edwards, Cape Cod,
Massachusetts. On August 2, 2009, the 181st held a
“Family Day” event at Camp Edwards. Members of
the 181st were required to attend and were paid for their
time. The event was designed to boost morale among the Guard
members and their families. It was designed as a relatively
informal, unstructured setting where soldiers and their
families could mingle and socialize, an objective being to
develop a more cohesive unit.
family day had been planned in advance by Captain Russell T.
O'Neill and First Sergeant Keith Hathaway. It included a
cookout, an information station for the Family Readiness
Group, and an organized softball game pitting the officers
and non-commissioned officers (“NCOs”) against
181st has a hierarchical military structure of officers and
enlisted soldiers. The Commander of the unit at the time was
Captain O'Neill. He generally oversaw planning for the
family day event, but he did not attend. First Sergeant
Hathaway, who reported directly to O'Neill, attended and
generally supervised the activities at the event. Hathaway
was the highest ranking NCO present at the family day.
company's Family Readiness Group consisted of
soldiers' family members. Its purpose was to provide
support and assistance to the families of soldiers who were
away from home on deployment. Denise was the chair of the
Family Readiness Group.
Sr. attended the family day event as required, along with
Denise, Darren Jr., and their daughter. Darren Jr.'s
older brother, who was also a member of the 181st, also
attended, but apparently was not involved in the events at
issue. Denise spent much of the day manning the Family
Readiness Group table.
family day events took place in and around an outdoor
softball field. According to a photograph in evidence, the
field was generally enclosed by a chain link fence. There was
a break in the fence, serving as an entryway to the field,
approximately halfway between home plate and third base.
Behind that opening was a bench, serving as a sort of dugout,
and a set of bleachers. Beyond was a concrete pad where the
family readiness table, along with the food from the cookout,
was set up, facing away from the softball field and towards a
parking lot located a few feet further out.
the later afternoon, an informal softball game was started on
the field. Unlike the organized officers versus enlisted
soldiers game held earlier, the evidence strongly suggests
that this was a pick-up game among those who wanted to play.
Hathaway recalled some soldiers wanting to play another game
as the day was winding down. Hathaway testified that he
stayed and watched that game. As the game was under way, Dean
Meehan, another soldier in the 181st, approached both Darren
Sr. and Denise to ask if he could take Darren Jr. to play in
the game. Both parents agreed, and Darren went with Meehan to
join the game. Neither Darren Sr. nor Denise watched the
game, nor saw their son until after the accident.
testimony was inconsistent as to whether Darren was the only
young person to participate in softball activities. On the
one hand, Hathaway did not recall any young persons or
children other than Darren Jr. being present on the field. On
the other hand, Private Randy Nogueira, who was catching in
the pick-up game, recalled children being allowed a chance at
bat and that they lined up against the fence to wait their
turns to do so. No witness was able to put this in any
coherent chronological sequence.
specific facts leading up to Darren's injury are somewhat
clearer. Toward the end of the day, Hathaway was standing
inside the fence, off the third base line. Darren Jr. was
near Hathaway, only a few feet away, also inside the fence,
and also off the third base line.
noted, Nogueira was playing catcher. A batter hit a ball into
the outfield. The outfielder fielded the ball and threw it
toward Nogueira in an attempt to put out a runner who was
heading to home plate. The ball was overthrown and bounced to
the backstop, where Nogueira went to retrieve it. The player
who had hit the ball into the outfield was running the bases.
Either he or another runner was approaching third base.
Darren was moving toward the third base line. Standing along
the third base line, Hathaway yelled, “The play is to
catcher Nogueira moved to get the ball at the backstop, he
saw Darren walking toward home plate. Hathaway also recalled
seeing Darren walk past him and bend down as if to pick up a
retrieved the ball, and believing that Darren would stop his
approach toward the field, immediately turned and threw the
ball toward third base. The thrown ball struck Darren on the
side of the head, and Darren immediately dropped to the
ground. The throw was not wild; it moved from Nogueira's
position behind the plate in the direction of third base. The
precise locations of Nogueira, Hathaway, and Darren Jr.
cannot be determined from the evidence. Nogueira was
left-handed, and it is likely that he retrieved the ball at
the backstop somewhat to the left of the third base line
extended past home plate and that the path of his throw to
third base was also somewhat to the left and outside the
third base line, which was where Darren was situated.
parents quickly learned of the accident and rushed to his
side. Darren Jr. was unable to speak, and remained on the
ground until an ambulance arrived. Denise traveled in the
ambulance with her son first to a local hospital, and then to
Tufts New England Medical Center in Boston.
undisputed that Darren Jr. suffered from a closed head injury
on the right side of his head. It can be described as a
“Ping-Pong” injury, with the brain bending
slightly inward and then popping back outward. He suffered an
intracranial hemorrhage, hemisphere swelling, a severe
concussion, and brain bruising. His injury led to bleeding
within his brain that caused damage to his brain cells,
resulting in the destruction of a two-centimeter-wide area
located in the sensory strip of the brain.
region of the sensory strip that was damaged corresponds
specifically to sensation in the left hand, which is
Darren's major hand. It is now constantly numb. This
damage is permanent and cannot be rehabilitated. This injury
causes Darren difficulties with activities requiring left
injury also caused Darren to have seizures. His first seizure
occurred while still on the ground at the softball field; his
eyes rolled back and he was for a short time unable to move
or respond. Darren had several seizures in the first months
and years following his injury. He would feel odd, become
nonresponsive, and stare into space. He required anti-seizure
medication. For a while he had the assistance of a service
dog, trained to anticipate the onset of seizure activity. In
addition, for a time he was required to have immediately
available, including while at school, some additional
medication to be administered in the case of particularly
severe or extended seizure activity. This medication was
never needed, but the nature of the medication (it was
delivered by rectal suppository) and necessity of having it
always at hand caused Darren increased anxiety. In recent
years, Darren's seizures have subsided, but he remains at
lifelong risk for a recurrence of seizures.
injury also resulted in increased fatigue and exhaustion.
After the injury, after returning home from school he would
immediately nap, often for several hours, rather than spend
time with friends or in activities. Darren's treating
psychotherapist, Julia Swartz, a clinical social worker,
recommended that if Darren were to begin community college,
he should start with only one or two classes until his
stamina had been rebuilt.
the accident, Darren also experienced severe migraine
headaches. They came very frequently shortly after the
accident, sometimes on multiple occasions per week. More
recently, their frequency has diminished to a rate of perhaps
a couple of occasions per month. These headaches occur more
frequently when Darren concentrates intently, such as with
schoolwork. He continues to have difficulty in performing
work that requires intense concentration.
Darren has some cognitive deficits as a result of the injury.
He has some difficulty with short-term memory, such as
remembering specific tasks he has been told to complete. Dr.
Ekkehard M. Kasper, a neurosurgeon, described the area of the
brain that was injured as one which “carries out
complex tasks which influence various constructional skills
as well as abstract thinking . . . which has compromised his
memory, concentration and sustained attention
capabilities.” (Ex. 15, at 16.) Dr. Steffen Fuller, a
doctor of clinical psychology, described Darren as having
mild cognitive impairments. Personality testing ...