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Woolf v. United States

United States District Court, D. Massachusetts

September 28, 2016



          George A. O'Toole, Jr. United States District Judge

         The plaintiffs, Darren M. Woolf (“Darren” or “Darren Jr.”), Darren Woolf (“Darren Sr.”), and Denise Woolf (“Denise”), [1] 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.

         I. Findings of Fact

         Darren 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.

         The 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 enlisted soldiers.

         The 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.

         The 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.

         Darren 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.

         The 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.

         Toward 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.

         The 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.

         The 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.

         As 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 third.”

         As the 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 bat.

         Nogueira 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.

         Darren's 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.

         It is 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.

         The 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 hand dexterity.

         His 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.

         Darren's 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.

         After 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.

         Additionally, 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 ...

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