Bungee cord hits man's eye during sales meeting

Plaintiff suffers complete, permanent loss of vision

$1.7 million settlement

The plaintiff, who oversaw a golf club pro shop, met with a sales representative of a major line of golf clothing in the representative's trailer, where the clothing was on display.

The trailer door was held shut with a bungee cord which ran from inside the trailer, through the doorway and onto a small lip on the outside edge of the door. While the two were in the trailer, the door was blown open by the wind, the bungee cord came free, and the plaintiff was struck in the right eye, resulting in permanent, total loss of vision in the eye.

The plaintiff claimed that the trailer was not designed to safely display apparel to customers. The plaintiff argued that the door could not be secured from the inside because the only latch was on the outside, and that the use of the bungee cord was poorly conceived, ineffective and dangerous.

Although the liability claim against the salesperson was relatively straightforward, the salesperson was uninsured, as he did not carry business insurance.

The claims against the apparel company were met with strong defenses. The company claimed that its representative was an independent contractor, so the company should not be liable for his conduct. The company's insurer claimed that the representative was not covered under its liability policy.

In response, the plaintiff claimed that the corporate entity should have been aware of the dangers involved in the misuse of bungee< cords; that it knew or should have known of its representative's improper use of the trailer; and that it was negligent in failing to prevent the misuse of the trailer and the bungee cords.

The plaintiff further claimed that the apparel company was vicariously liable for its representative's conduct. The defense responded with evidence of a contract that appeared to immunize the corporate entity by characterizing its representative as an independent contractor. The plaintiff's position was that, despite the contractual language, the corporate entity led the plaintiff to believe that the representative was its employee, and that it was liable under a theory of "apparent authority."

The plaintiff further claimed that his own knowledge of the industry supported his belief, because other companies used employees rather than independent contractors to sell their lines of clothing.

The plaintiff contended that the corporate entity's liability insurance did provide coverage for the representative. In addition, claims were asserted against the representative's insurance agent for failing to obtain necessary business insurance for its client.

In addition to the damages for loss of vision, pain and suffering, and loss of consortium, the plaintiff supported the damages claim with testimony from experts in the golf profession, as well as an expert economist. The golf professionals testified as to the plaintiff's likely future success in competitive golf, teaching and working as a club professional prior to the accident, and the impact that losing sight in one eye would have on each aspects of his career. The economist focused on the impact that the injury would have on the plaintiff's future as a club professional.

The case was presented through the use of two lengthy demand letters, supported with expert reports, photographs and other documentary evidence. Mediation among the parties commenced in May and resumed for a second day in June. The case settled without being put into litigation.

Type of action: Negligence & tort

Injuries alleged: Loss of sight in one eye, loss of consortium

Name of case: Withheld

Court/case no.: Withheld

Tried before judge or jury: N/A (settled through mediation)

Name of mediator: Paul A. Finn, Commonwealth Mediation & Conciliation, Inc., Brockton and Boston

Amount of settlement: $1.7 million

Date: July 2007