Opinion
8:98CV296
March 2000.
MEMORANDUM AND ORDER
This matter was tried to the court on September 21, 1999. I have reviewed all of the evidence, exhibits, the parties' trial briefs, and their proposed findings of fact and conclusions of law. For the reasons stated below, I find for the plaintiff in the amount of $20,000.00, a reasonable attorney fee, and costs.
The plaintiff was, at all relevant times, a resident of the State of Nebraska, within the jurisdiction of this court.
The defendant United States of America owns and operates the Veterans Administration Hospital (VAH) located in Omaha, Nebraska.
The plaintiff timely filed an administrative claim pursuant to the Federal Tort Claims Act, which claim was filed on or about February 9, 1998.
At the time of the incident described below, the plaintiff was 42 years of age.
On January 29, 1997 at approximately 10:00 a.m., the plaintiff, a business invitee, was in the Medical Intensive Care Unit of the VAH visiting a patient.
The chair in which the plaintiff was sitting collapsed beneath him, wedging his left arm between the patient's hospital bed and its bed rails. The plaintiff was unable to extricate himself, and remained pinned for several minutes until help arrived.
The heads of the bolts which fastened the seat and backrest of the chair to the suspension system which formed the underpinnings of the chair fractured due to normal wear and tear and the design of the chair.
Hospital staff lifted the plaintiff from his pinned position. He complained of lower back pain and a burning sensation in his left shoulder.
A VAH physician conducted a follow-up physical examination of the plaintiff immediately thereafter, including x-rays of the back and shoulder. The examiners found no fractures, dislocations or joint instability and noted the plaintiff's complaints of pain which included his left shoulder.
The plaintiff was treated by Jay Parsow, M.D., on April 2, 1997. Dr. Parsow found the plaintiff to have chronic mechanical and/or discogenic low back pain both before and after the incident in question. He also found soft tissue injury to the left shoulder consistent with this incident. He recommended continued conservative treatment. However, the plaintiff did not continue to seek treatment from Dr. Parsow.
The plaintiff has been treated at the VAH from the time of this incident until the present for a number of related and unrelated medical conditions.
Independently of the incident in question, the Social Security Administration has found the plaintiff by to be totally disabled due to his psychological condition.
During an exhaustive review of the medical record submitted, I was unable to find any treatment or trauma to the plaintiff's left shoulder that predated the incident on January 29, 1997. The plaintiff had numerous injuries prior to January 1997, but none to his left shoulder, and none I could find of a permanent nature that could be attributed to his left shoulder. In his September 6, 1995, hospitalization, the plaintiff complained of bilateral shoulder and knee pain. The treating physician found decreased range of motion bilaterally. The plaintiff was tentatively diagnosed with arthritis. I found no history prior to the accident that would account for his post accident complaints of shoulder pain predominately on the left side. Generally, the plaintiff's medical history relates to his mental condition and its treatment.
As the result of the injury sustained at the time the chair collapsed, the plaintiff injured his back and left shoulder. The injury to his back was temporary, lasting only a few days. The injury to his left shoulder is both chronic and permanent. The symptoms have persisted for an extended period of time — over two years. The treatments rendered by the VAH have never given any extended relief. There does not appear to be any likelihood that future treatment will eliminate the plaintiff's condition.
The VAH, through its employees, was fully aware of the propensity for chairs such as the one that collapsed under the plaintiff to fail in exactly the same manner as in this case.
The VAH knew that the chairs presented risks to its invitees and knew that the chairs' design prevented the chairs from being repaired to avoid future failures. The VAH did not believe, however, that the risk was substantial enough to warrant replacing or removing these chairs.
CONCLUSIONS OF LAW
The plaintiff was a business invitee of the defendant at time of the incident on January 29, 1997.
The defendant had a duty to exercise reasonable care in the maintenance and inspection of its premises in order to prevent hazardous conditions.
The plaintiff has established the elements of negligence found in Schade v. County of Cheyenne, 575 N.W.2d 622, 624 (Neb. 1998).
The defendant had superior knowledge of the dangers to which invitees were subjected and of which they were unaware. Richardson v. Ames Ave. Corp., 525 N.W.2d 128, 215-16 (Neb. 1995).
The defendant was negligent in failing to warn business invitees or to replace, remove, or modify the chairs designed like the one in the instant case because of their previously known propensity to collapse. The plaintiff's injuries and damages were thus directly and proximately caused by the negligence of the defendant or its agents.
Due to the nature and extent of the plaintiff's injuries, both temporary and permanent, and fully considering the plaintiff's prior continuing total disability, I find that the plaintiff has suffered temporary and permanent pain and suffering as the result of his injury. More particularly, the plaintiff has suffered a permanent loss of partial function to the rotator cuff of his left shoulder and the pain and suffering attendant thereto. The plaintiff also has suffered a few days' temporary pain and suffering as the result of his back injury. Accordingly, the plaintiff is entitled to recover $20,000.00 as a result of these damages, along with a reasonable attorney fee and costs.
JUDGMENT
Pursuant to the court's Memorandum and Order entered today in this matter, the Court hereby enters final judgment in favor of the plaintiff and against the defendant in the amount of $20,000,00, a reasonable attorney fee, and costs.