After a five-day bench trial, a federal judge from the District of Massachusetts has awarded more than $1 million in damages to a teenager and his parents after the teenager suffered a traumatic brain injury while playing in “an informal” softball game at a “Family Day” event organized by the U.S. Army National Guard.
The case was successfully prosecuted against the Federal Government, pursuant to the Federal Tort Claims Act (FTCA).
The plaintiffs in the case were the Woolf family. The teenager was Darren M. Woolf (Darren Jr.). The father and mother were Darren and Denise Woolf.
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 event.
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.
Late that 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,” according to the court. 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 Jr. was the only young person to participate in the softball activities. On the one hand, Hathaway did not recall any young persons or children other than Darren Jr. being present on the field.
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.
Private Randy 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 Jr. 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, when he saw Darren Jr. walking toward home plate. Hathaway also recalled seeing Darren Jr. walk past him and bend down as if to pick up a bat.
Nogueira retrieved the ball, and believing that Darren Jr. would stop his approach toward the field, immediately turned and threw the ball toward third base. The thrown ball struck Darren Jr. on the side of the head, and Darren Jr. 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 Jr. 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 Jr. difficulties with activities requiring left hand dexterity.
His injury also caused Darren Jr. to have seizures. While the seizures have subsided in recent years, he remains at lifelong risk for a recurrence of seizures. He suffers from a host of other ailments, some of which are permanent. He will likely require lifelong psychological assessment and treatment, according to the opinion.
“His parents, Denise and Darren Sr., have also suffered emotional distress and hardship as a result of Darren Jr.’s injury,” wrote the court, which went on to elaborate. In the immediate aftermath of the accident, they both feared that they might lose their son. “Both parents have undergone significant emotional stress as a direct result of Darren’s injury and its aftermath,” the court added.
In its analysis, the court noted that the FTCA “is the exclusive remedy for negligent acts committed by government employees acting within the scope of their employment.”
The plaintiffs offered “four theories of liability: (1) Nogueira acted negligently in throwing the softball to third base without noticing the danger to Darren, (2) Hathaway (and other soldiers) were negligent in allowing Darren onto the field during active play, (3) helmets should have been provided to players (with the implication that Darren should have been wearing one), and (4) the organizers of the family day (including Captain O’Neill) were negligent in not properly planning for having a softball game with young people and children playing.”
The court rejected the latter two theories since both theories “presume that the softball game was a far more formal and organized event than the evidence showed it was.”
“Evaluating liability for Nogueira’s and Hathaway’s conduct requires a discussion of the proper standard of care, and it is different for each of them,” wrote the judge.
“The best conclusion from the evidence is that Nogueira was simply trying to play competitively, if over-enthusiastically. That does not reach the recklessness standard.
“In contrast, Hathaway’s potential liability is based not on his participation as a player in an athletic event, but rather on his overall responsibility, as the senior officer on site at the family day event, to avoid exposing attendees to foreseeable and unreasonable risks of harm. In other words, the theory of liability asserted against Hathaway is the familiar one of premises liability: a person in control of premises has a duty to avoid exposing persons on those premises from an unreasonable risk of harm. Dos Santos v. Coleta, 465 Mass. 148, 987 N.E.2d 1187, 1192 (Mass. 2013) (An owner or possessor of land owes a common-law duty of reasonable care to all persons lawfully on the premises.). The applicable standard of care is simple negligence. Id. By reason of his supervisory responsibilities, Hathaway specifically had a duty to protect Darren (and others similarly situated) from foreseeable risks of harm.
“On the evidence, I find that Hathaway was negligent in not preventing Darren from wandering into the field of play and thus exposing himself to an errant throw from Nogueira toward third base. It is true that the exact details of the play are uncertain: who was positioned where, how far Darren and Hathaway were from the third base line, where Nogueira was when he threw the ball, etc. Nonetheless, Hathaway, only a few feet away, saw an emergent and dangerous situation as Darren walked towards the third base line just as play on the field centered on that location, a fact that Hathaway was clearly aware of. (He shouted, “The play is to third.”) The evidence indicated that Hathaway may have been more interested in the game than in the safety of bystanders, which was his responsibility. He was the senior soldier on the field, and he had the authority and duty to act if a dangerous risk arose. By allowing Darren to walk past him towards an active play, while remaining more focused on the play itself, Hathaway negligently allowed Darren to be exposed to the hazard of physical injury, and that hazard resulted in actual injury.”
The court was responsive to the government’s argument for contributory negligence, finding that Darren Jr. was 20 percent at fault. This reduced his overall award of $1,272,752 to $1,018,201. It also awarded Denise $150,000 and Darren Sr. $75,000 for their loss of consortium, emotional distress, and care and support claims.
In conclusion, it wrote that “Darren is a bright young man who faced a difficult set-back in his life. His life may not follow his original plan, but with the appropriate care and treatment, it should be a happy and fulfilling one. That is the purpose of the compensatory tort system.”
Denise Woolf, Darren Woolf, and Darren M. Woolf v. United States of America; D. Mass.; CIVIL ACTION NO. 12-11351-GAO, 2016 U.S. Dist. LEXIS 133551; 9/28/16
Attorneys of Record: (for plaintiffs) Francis J. Lynch, III, Peter E. Heppner, Lynch & Lynch, South Easton, MA. (for defendant) Michael P. Sady, LEAD ATTORNEY, Amy B. Lipner, Rayford A. Farquhar, Susan M. Poswistilo, United States Attorney’s Office, Boston, MA.
