Defective Big Dig Handrail Suit Settles For $9 Million

Today is Thanksgiving Day, and so if this post can offer anything to be grateful over, perhaps you can say that you’re grateful you weren’t injured or killed by the negligence of the people who built Boston’s famous Big Dig tunnels. (You know, the same tunnels which ended up leaking millions of gallons of Boston Harbor water into the tunnels, due to more negligence and graft than I care to cover right now.)

One of several dangerous defects in the design and construction of those tunnels, centers on the guardrails/handrails that were designed and installed at the sides of the tunnels. The rails were placed there to protect tunnel employees who would regularly be walking at the sides of the tunnels, from falling into traffic. The rails are slightly more than 3 feet off the ground, about the same height of a motorcycle seat or car window – extremely low. The dangerousness of these tunnel handrails was first brought to light last February 2010, when The Boston Globe published a story on how many injuries and fatalities had resulted by drivers literally being sliced to death after being caught in the rails. Between 2005 and 2008, a total of seven motorists and passengers were killed after striking the handrails which line the Big Dig tunnel system. Most of the seven victims who died were dismembered by the rails in the accidents; one other person lost an arm but survived. Four victims were riding motorcycles and three deaths involved people in vehicles.

One of those victims was a Massachusetts state police trooper, Vincent Cila, who was killed on duty when he lost control of his motorcycle, and was dismembered by the guardrails. Cila’s family sued the Massachusetts Turnpike Authority (now known as the Massachusetts Department of Transportation,) and several private contractors involved in the design and construction of the tunnels and the guardrails, alleging negligence in the design and installation of these particular guardrails.
This past week, the attorney for the Cila family announced that the case had settled before going to trial, for $9 million. The lawsuit filed by Cila’s family focused on the design of the railings, alleging that their faulty design led to Cila’s death. Cila’s widow argued that her husband’s death might have been avoided if the Big Dig had used a common rail design with rounded, pipe-like vertical posts and rounded horizontal runners. While most such railings are round and tubular, the tunnel’s railings have rectangular posts, about three-quarters of an inch wide. The suit argued that the squared-off edges of the posts acted like the cutting blades in a paper cutter, slicing off Cila’s left arm at the shoulder. Cila, 45, was on duty when his Harley Davidson motorcycle struck the handrails on July 22, 2005; he was driving about 35 miles an hour. Ambulance and rescue personnel who responded to Cila’s and the other guardrail accidents dubbed the rails the “ginsu guardrails,” after the TV ads known for sharp knives.

So often, what happens after a case like this is filed, is that somewhere down the road in the long process of discovery, the proverbial smoking gun is found: Evidence that the defendant(s) knew that what they were manufacturing, or selling, or recommending, or installing, was dangerous or defective – yet they did nothing to correct the problem. Why? In almost all cases, it’s either pride or greed: Pride, in the sense that their individual or corporate egos can’t admit that they were making a mistake, or greed, in that they knew that their product or a design was dangerous, but didn’t want to spend the money to correct the defect or problem.

And true to form, that’s exactly what happened here. The smoking gun in this case, turned out to be newly obtained documents the attorney for Cila’s family filed this summer in the lawsuit, which revealed that federal highway officials had previously warned Massachusetts officials overseeing the tunnels construction, that the rails might be dangerous and should be crash-tested. The result? The recommendation was declined.

Donald E. Hammer, division administrator of the US Department of Transportation’s Federal Highway Administration, wrote to Peter Zuk, the Big Dig’s project director in 1992, that “We have reservations regarding safety considerations of these designs. Our concern is that the ornamental railing may be dislodged or be poorly maintained, and, thus be a potential piercing object.”The reply from Zuk, project director of the Mass. Highway Department’s Central Artery/Tunnel project, was completely dismissive. “It is not the intent that [the handrails] participate in vehicle collisions,” Zuk said, adding the rails were only for pedestrian use, and were placed so they would not be struck by vehicles. “As such, we fail to see the wisdom or the need to expend money to crash test this rail,” added Zuk. Arguably because of this decision, 7 people have been killed.

As part of its story back in February, The Boston Globe contacted three roadside barrier and accident reconstruction experts who said the railings were flawed. These experts all said that the railings’ railings should have been placed higher, so that it would be less likely that motorcyclists or car passengers who were ejected in a collision would be snared by the railings. These experts also said that the horizontal runners on the railings were spaced too wide apart, making it more likely that a driver whose vehicle struck the barrier would get entangled and then slammed into a horizontal post.

When this settlement was announced earlier this week, a Massachusetts Transportation Department spokesman expressed regret for Cila’s death. At the same time, however, the department referred any comment on the case to the insurer covering the project, AIG. AIG had no comment to offer.

No amount of money, in this case or other cases, whether auto accidents, wrongful death or construction site accidents, can replace the death of a loved one. From my view as a Massachusetts personal injury attorney who specializes in Product Liability cases, the chief benefit of these kinds of large settlements (or verdicts, in cases that go to trial,) is obvious: They punish the parties responsible for the negligence that led to the injuries or death involved, and send a message to similar players. That legal process is what makes America safer – safer in the products people buy, the buildings they occupy, the cars they drive, the clothes they wear, the food they consume, and on. This settlement will instantly broadcast to other states and private contractors everywhere, that guardrails of the type used in these tunnels must be redesigned, and cannot be used. If not, the parties involved in this kind of construction risk even higher financial penalties. These changes are inevitable once verdicts or settlements like this are announced. They’re driven by the resulting market exposure to legal liability. That’s what makes our tort system so great.

Aside from the Massachusetts Turnpike and Bechtel, the other defendants include: Parsons Brinckerhoff Quade & Douglas Inc., Bechtel/Parsons Brinckerhoff, Gannett Fleming Inc., Modern Continental Construction Co., Tuttle Aluminum & Bronze, and Saugus Construction Corp. Hopefully, these and similar companies will get the message from this settlement, and never repeat this “mistake” again.

Prior to this week, state officials have always insisted that the design of the handrails is safe and complies with federal and safety standards. Odd, I don’t hear them saying this anymore. I don’t hear AIG saying anything. There’s another sound not being heard today, either: The sound of Vincent Cila – and six other victims- enjoying a happy Thanksgiving today, or any day. And no amount of money will ever fix that.