Unsafe Work Practice Disables Mariner: $700,000 Federal Court Verdict Against ACBL in favor of Mate Injured While Jerking Wire
On May 13, 2005, an Illinois Federal Court ordered American Commercial Barge Line, LLC. (ACBL) to pay almost $710,000 to Dennis Shreve for back injuries he suffered from a work related injury in November of 2002. Shreve, 43, of Hartford, Kentucky, was working as a mate crewed to the M/V TOM FRAZIER when he injured his back while attempting to "jerk" slack out of a steel wire at a "high-low coupling" after passing through a lock on the Mississippi River at Winfield, Missouri. The judgment is believed to be the largest ever against a barge company involving this work practice, which was described by ACBL at trial as "customary" and "ordinary" in the maritime industry.
At the time of the injury, Shreve had worked for ACBL for over 20 years, and his family had a history of 75+ years of service for the company. Shreve was used by ACBL as a safety trainer of other deckhands for years before the incident and was the boat's safety representative.
After coming through the lock, Shreve and two deckhands attempted to secure two of the fifteen barges in the tow together with a 35-foot fore/aft 3-part wire, extended an additional 10 ft. with chain links, cable strap, shackles, and pins. After the cable had been wrapped around several barge deck fittings, it was to be secured to a ratchet and tightened to another fitting on the barge.
Pursuant to ACBL work rules and procedures, the crew was required to "jerk" slack out of the wire before securing it to the ratchet. Shreve was required to stand on the upper barge, 2 1/2 -feet above the lower barge where the other two crewmembers were trying to synchronize their jerk. In the process, Shreve had to bend his back at waist level to reach down to grab and jerk the steel cable and felt immediate and excruciating pain that caused him to fall to his knees with a low back injury.
After ACBL terminated maintenance and cure payments and health insurance, Shreve filed suit under the Jones Act alleging a failure to provide a safe workplace based on unsafe work methods and the failure of ACBL to provide winches to remove the wire slack. The evidence at trial showed that ACBL employees previously had suffered injuries jerking wire and had complained about this work method and had requested barge winches, but that ACBL had chosen to provide winches on new barges only. The evidence also proved that the stationary 45-foot wire with which the barge had been originally equipped had not been replaced and Shreve was required to work with a more cumbersome and heavy set of boat rigging.
Shreve's treating doctors diagnosed a herniated disc in his low back but declined to perform spinal surgery since that would not allow him to return to work. A functional capacity evaluation suggested that Shreve was capable of performing heavy work. ACBL admitted that he was not capable of returning to work, yet did not offer him any other employment. Shreve did not hire any experts to testify at trial.
ACBL denied the existence of any unsafe conditions, methods or inadequate equipment. Its maritime expert, Capt. Samuel Schropp, of Ingram Barge Co., contended that jerking slack from wires, instead of using a winch, remained a common maritime industry practice which he believed to be safe. He claimed that Shreve was contributorily negligent for failing to ask the captain to rearrange the barges to avoid the high-low coupling, if Shreve thought there was a hazard. However, every company official and employee who testified at trial admitted that Shreve had done nothing wrong, had not violated any safety rules, and was simply using the company's methods.
ACBL's medical expert claimed that Shreve had only suffered a back strain and that he had pre-existing degenerative disk disease exacerbated by multiple prior and unrelated motor vehicle collisions. ACBL's vocational expert claimed that Shreve was physically qualified to return to 92% of all jobs, including as a tow boat pilot or truck driver, despite the fact that Shreve had chronic pain and was taking Darvocet. At the end of the trial, ACBL's lawyers asked the jury to deny Shreve any compensation for his injuries.
The jury of eight men and women from throughout southern Illinois deliberated for only two hours before returning a unanimous verdict for Shreve in the gross amount of $874,332. The itemized verdict ordered ACBL to pay over $730,000 to Shreve for future medical expenses and past and future wage loss, with the remainder going for non-economic damages of loss of a normal life, pain and suffering, and emotional distress. The jury reduced the gross verdict by 19% on account of what it determined to be Shreve's contributory negligence, resulting in a net verdict of $708,208.92, upon which judgment was entered.
Shreve filed a motion with the court asking it to reinstate the entire verdict, since the finding of contributory negligence was not supported by the evidence and constituted assumption of risks inherent in the employment, which is not allowed as a basis for offset under the Jones Act.
It is also noteworthy that following the date of injury, defendant (ACBL) filed for bankruptcy under Chapter 11 and sought to discharge this claim as unsecured. The plaintiff challenged same and successfully obtained secured status, such that the claim will not be subject to any discount. Prior to trial, ACBL had only offered a settlement of $275,000, which was rejected. Shreve was represented by Attorney Nelson G. Wolff of the St. Louis, Missouri firm Schlichter Bogard & Denton.
According to Mr. Wolff: "The verdict vindicated Dennis, a worker with 20 years experience who had been blamed by the company for causing his own injury. The disabling injuries could have been prevented if ACBL had learned from previous similar incidents and just spent some of its profits on safety equipment."
The Honorable Michael J. Reagan presided over the trial in East St. Louis, Illinois.