Personal Injury: Concussion/Commercial Garage Door - 2.8 million dollar award

Type of Injuries: Plaintiff sustained a concussion/head injury alleged with permanent loss of memory, difficulty with concentration and attention.
Name of Case: Berberian v. K-Mart Corporation
Court/Case #:Norfolk Superior C.A. No. 137202
Judge or Jury: Jury
Name of Judge: Roger Donohue
Special Damages: $14,000 medical expenses
Damages Awarded or Settled: Awarded
Amount: $2.000,000.00 ($2.888 million with interest).
Attorney for Plaintiff: Kenneth I. Kolpan, Boston, Massachusetts
Insurance Carrier: Self-insured
Highest Offer: $150,000

Other Useful Info.- Plaintiff was a 26 year old special education assistant teacher when she was struck by a manually operated overhead garage door at the K-Mart Garage, Sharon, MA on January 15, 1982. Plaintiff had brought her car to be serviced at the defendant's garage and was following the defendant's employee out the garage bay door. Another defendant employee was walking next to her. There were no signs warning customers to exit through a regular door nor did the defendant's employees instruct the plaintiff to exit through the customer door. A defendant's employee pulled down the garage door striking the plaintiff on the head and hitting the other K-Mart employee.

Plaintiff immediately saw black and held her head. Later that morning, she vomited forcefully and was taken by her friend to an emergency room of a nearby hospital. Plaintiff was examined at the hospital, and x-rays were taken. The skull x-rays were normal, the diagnosis was possible concussion. Subsequent EEG and CT examinations were both normal.

During the next four years, the plaintiff was treated by internists, orthopedists, neurologists, neuropsychologists, psychotherapists and other medical professionals in order to gain relief from her constant headaches, pain and discomfort. She suffered daily headaches and nightmares; she testified that she had memory problems, attention difficulties and concentration deficits. The plaintiff attempted to return to work as a special education teacher, but testified that she was unable to perform her duties and remained unemployed at the time of trial except for working as a messenger a few hours a week.

Suit was brought against K-Mart Corporation for 1) failing to adhere to industry standards in not having an electronically operated garage door with safety features, 2) for the negligent act of its employee in pulling the garage door down without looking behind him, and 3) for failing to warn the plaintiff either by a sign or orally not to exit through the open garage bay door.

At trial, an expert in garage door installations testified that the industry standard in 1982 required the use of an electronically operated garage door that closed at a slower speed than when it was pulled down and had a safety feature stopping the door whenever it made contact with a person or an object. Plaintiff's expert neuropsychologist testified with the use of demonstrative evidence that the plaintiff scored in the brain-damaged range on five sub-tests of the neuropsychological test battery all demonstrating cognitive deficits in memory, attention and concentration. It was his opinion that she was brain-damaged and unable to work.

Plaintiff's expert neurologist testified that the plaintiff suffered a tearing and shearing of her brain tissue when she was struck by the 400 pound garage door, notwithstanding the fact that skull x-ray films, CT and EEG tests were normal. Plaintiff's expert neurologist further testified that her concussion caused an injury to the area of the plaintiff's brain which affects memory, concentration and attention.

Plaintiff's former supervisor testified that right before the accident. he recommended she obtain her certification in moderate special needs. It was his opinion that she would have become a full special education teacher within one year after obtaining her certification. Plaintiff attempted to complete the certificate program at Northeastern University after her accident but testified she was unable to finish the program.

Plaintiff's expert neurologist and neuropsychologist each testified that she will be unable to return to her former job in the foreseeable future. Plaintiff's economist testified that her lost earning capacity was $939,000.

Defendant's expert testified that he could find nothing wrong with the plaintiff when he examined her. He concluded that she was faking any on-going disability. Defendant also introduced evidence that plaintiff was receiving monthly disability payments in an effort to establish she is a malingerer. On redirect, plaintiff counsel elicited testimony that she was receiving disability payment because an administrative law judge had determined she was disabled and unable to work.

After five days of trial, the jury returned a verdict against the defendant in the amount of $2.000,000. With interest, the verdict is more than $2.888 million dollars.

Judge Donohue denied defendant's motion for a new trial and affirmed the jury verdict in the amount of $2,000,000.00.

Published with permission of Massachusetts Lawyers Weekly.