Petersen v. Head Construction Company, Civ. A. No. 858-72.

• Decision Date: 30 November 1973
• Docket Number: Civ. A. No. 858-72.
• Citation: 367 F. Supp. 1072
• Parties: Edward S. PETERSEN et al., Plaintiffs, and United States of America, Intervenor-Plaintiff, v. HEAD CONSTRUCTION COMPANY, Defendant.
• Court: U.S. District Court — District of Columbia

367 F. Supp. 1072

Edward S. PETERSEN et al., Plaintiffs and United States of America, Intervenor-Plaintiff, v. HEAD CONSTRUCTION COMPANY, Defendant.

Civ. A. No. 858-72.

United States District Court, District of Columbia.

November 30, 1973.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Alan Raywid, Washington, D. C., for plaintiffs.

Michael A. Katz and J. Michael McGarry, Asst. U. S. Attys., Washington, D. C., for intervenor-plaintiff.

John J. O'Neill, Jr., Washington, D. C., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JOHN H. PRATT, District Judge.

This case came on for trial without a jury on May 23-25 and 29, 1973. After hearing and considering all of the evidence and submissions, the Court makes the following findings of fact and conclusions of law.

Findings of Fact

1. Plaintiff Edward S. Petersen is a 26-year-old male who at the time of this accident was a trumpet soloist in the United States Navy Band. Plaintiff Petersen was the owner and operator of the fiberglass planing hull boat, 14 feet in length with a 4½ foot beam, and powered by a 50 h.p. Mercury outboard engine, one of the two craft involved in this incident.

2. Plaintiff Larry Schickram is 28 years old and employed by Congressional Oldsmobile. At the time of the collision, plaintiff Schickram was a passenger in the Petersen boat, seated to the left of Petersen.

3. Defendant Head Construction Company is a roadway construction firm whose principal place of business is the District of Columbia. Defendant Head chartered and operated a barge, 93 feet in length with a 43-foot beam, which was the vessel with which the plaintiff Petersen's boat collided. The barge had no motive power of its own but was moved by a tug owned and operated by the defendant Head Construction Company.

4. Around the time of the occurrence Head Construction was engaged in completing the road surface of the Center Highway Bridge which was to be part of the I-95 interstate route. The Center Highway Bridge was one of three bridges extending across the Potomac from 14th Street in the District of Columbia to the Virginia side of the river.

5. Defendant's barge was used for the temporary storage and transportation of wooden forms stripped from the concrete work at the road level of the Center Highway Bridge. Defendant's tug would shift the barge to wherever work was to be performed.

6. At the end of the work day on Friday, September 4, 1970, the defendant left the barge moored lengthwise under Span 10 of the Center Highway Bridge. Span 10 is that area of the bridge between Piers 9 and 10, some 145 feet in length, and located just to the right (proceeding upstream) of the marked center portion of the channel.

7. That portion of the Potomac River which passes under Span 10 of the above-mentioned Center Highway Bridge constitutes part of the navigable waters of the United States.

8. The passage under Span 10 is approximately 133 feet wide. The defendant's barge, approximately 93 feet long and moored lengthwise, was set back several feet from the edge of the pier ends and under the overhead roadway.

9. The barge was moored in this location to await the commencement of work under Span 10 which was scheduled to begin September 8, 1970, after the Labor Day weekend.

10. The defendant had equipped the barge with four yellow flashing road warning lights, one in each corner. The Court finds that these lights were operating at the time of the collision and constituted the only illumination of the barge.

11. On the night of September 4, 1970, plaintiff Petersen operated his boat upstream on the Potomac on a course just to the right of the marked portion of the channel. Plaintiff Schickram accompanied him seated to his left. The night was clear with excellent visibility.

12. Upon approaching the bridges in the 14th Street area at approximately 10:00 p.m., Petersen cut his throttle to half speed or about 15 miles per hour. The plaintiff passed under the two bridges downstream to the Center Highway Bridge without incident. Petersen then approached the Center Highway Bridge to the right of the middle of Span 10.

13. At the last instant before impact, plaintiff Petersen noticed the presence of defendant's barge obstructing the passage under Span 10. The Petersen boat then struck the barge head-on and the impact rendered both Petersen and Schickram unconscious.

Liability

14. As noted above, the speed of Petersen's boat was fifteen miles per hour immediately prior to collision and the Court finds that this speed was excessive and immoderate due to the conditions of darkness, harsh shadows under the bridge, the construction area and possible debris in the Potomac River, all of which conditions were known or should have been known to the plaintiff Petersen prior to the collision.

15. The Court also finds that plaintiff Petersen failed to keep a proper and efficient lookout in an area where conditions of darkness, shadows and construction were known or should have been known to exist.

16. As to the defendant Head Construction Company, the Court finds that defendant's barge was obstructing the passage under Span 10 by occupying 93 feet of the 133 feet wide passage.

17. The Court finds that nothing in the language of the job specifications even purports to exempt floating equipment of the defendant contractor from the ordinary rules and regulations pertaining to vessels on navigable waters.

18. The Court is unable to make a finding with respect to the oral permission allegedly secured from the Harbor Police authorizing the placing and positioning of the defendant's barge. The Court does find, however, that any such permission would have been premised on an inadequate description of the location, manner and time of the mooring and therefore of no effect.

19. The Court finds that the defendant did not obtain authorization for the mooring from either the Army Corps of Engineers or from the U. S. Coast Guard.

20. The Court finds that a Mr. Horvath, the job inspector from the District of Columbia government, approved the mooring of defendant's barge under Span 10. The Court also finds, however, that said permission was conceded by Mr. Horvath to be beyond his competence and authority.

21. The Court finds that defendant's barge was not equipped with the standard white light as prescribed for vessels at anchor by Article 11 of the Rules of the Road, 33 U.S.C. § 180.

Plaintiff Schickram Damages

22. As a proximate result of the accident in question, plaintiff Schickram suffered a mild cerebral concussion, laceration above his left eyebrow, bruises of his knees, chest and hip. In addition, he suffered from disorientation and confusion as well as head pains.

23. Plaintiff's head laceration has left a scar but this can be substantially remedied by surgery. Whatever disfigurement which remains after surgery is his only permanent injury.

24. Plaintiff Schickram's actual medical expenses amount to $116.55 whereas his estimated future medical expenses approximate $900.00.

25. Plaintiff Schickram has suffered no diminution of his future potential earning capacity. Nor has this plaintiff suffered any loss of income due to his injury.

Plaintiff Petersen Damages

26. As a proximate result of the accident in question, plaintiff Petersen suffered three fractures to his jaw, i. e., fracture of the mandible symphysis, fracture of the right condyle mandible and fracture of the left condyle mandible. In addition, he suffered a laceration of the left auditory canal and a small chin laceration.

27. After appropriate treatment, Petersen has regained the normal use of his jaw for the purposes of eating, speaking and appearance. Jaw movement or mobility, however, has not been completely restored. Forward protrusion of the lower jaw has been impaired. Lateral movement of the jaw is not equal as a result of a restriction on movement to the right side.

28. These changes in jaw movement and changes in physical formation have resulted in a concomitant change in the plaintiff's "embouchure" which in turn adversely affects Petersen's ability to play the trumpet or any other wind instrument. This handicap in playing wind instruments is due to the loss of muscle control and sensitivity in the lips, realignment or change in jaw formation, and facial muscular control in the mouth, all of which Petersen has sustained as a result of the injuries incurred in this accident.

29. As a result of his injuries Petersen was hospitalized approximately three weeks during which time he experienced considerable pain and anxiety. He also spent three weeks recuperating after release from the hospital before returning to the Navy band for clerical duties.

30. As a further result of the injuries he sustained in this accident, Petersen has been unable to perform in the Navy band and has been relegated to the job of copyist for the band. The copyist's job is to transcribe by hand musical scores for each of the different instruments. He remained at his same pay level, currently $8,712.00 per annum. Petersen's expected future income from the Navy is $9,680.40 per annum.

31. Plaintiff Petersen had the potential to earn a substantial salary as a professional musician and this potential is denied him as a result of this accident. The Court finds $15,000 per annum as the average salary that Petersen could have expected as a professional trumpet player over the course of his expected life span. This figure specifically takes into consideration the highly competitive nature of the profession which makes future income predictions very speculative.

32. As of June, 1972, Petersen's work expectancy to age sixty-five was 39 years. The Court therefore computes plaintiff Petersen's damages due to his loss of earning capacity as follows:

(a) Future impairment of earning capacity: $15,000 less $9,680 equals $5,320 lost income. Multiplied by 38 years of future work expectancy, this amounts to a loss of $202,160.00,

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