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Suit ties injury to improper grate use

Family contends type that critically hurt man is prone to dislodging

The family of a man severely injured when a 250-pound storm grate slammed through his windshield on Route 128 last July said in a lawsuit filed yesterday that the airborne grate was a type barred from use on expressways where high-speed traffic could dislodge them.

Robert Norton, lawyer for Pawel Swierczynski, argues in the suit that the grate, and 23 others along a stretch of the highway in Westwood, should never have been installed because state construction standards specified that they were "not to be used on expressways, freeways, etc."

The grates, which have openings in the pattern of a waffle iron, are designed so that bicycle wheels won't get stuck in them and should be used "only . . . where bicycle travel is legally allowed," according to excerpts from the construction rules provided by Norton.

Swierczynski, a 39-year-old father of two, remains hospitalized with brain and spinal injuries from the July 27 crash in which a tractor-trailer drove over a loose grate, launching it through the air at his 2003 Toyota Corolla. His family alleges that the crash was at least the third significant accident that week involving grates in the northbound lane of Route 128 in Westwood, where SPS New England was carrying out a construction project and had diverted traffic onto the shoulder. The drivers in the other accidents were not hurt, but their vehicles were badly damaged.

"My concern is that [the waffle-style grates] are still out there," said Norton, though he added that he did not know why the grates are not allowed on highways.

He said he has notified the Massachusetts Highway Department that he intends to add the state to the lawsuit. "Maybe it was just one bad grate that was warped in some way, but I would hate to see this happen again," Norton said.

The freak accident on one of Massachusetts' most-traveled roadways spurred inspections of all 86,000 storm grates and manholes statewide as the state's highway commissioner, Luisa Paiewonsky, promised to secure every one that "even . . . is rattling."

Yesterday, a spokesman for Paiewonsky said he was uncertain whether the 24 waffle-type grates were still in place on 128. But the spokesman, John Lamontagne, said inspectors discovered that the grate involved in the accident was different from the others in the Westwood stretch because it had been elevated on an extra piece of iron so that the grate surface would be even with the road. After the accident, he said, the piece of iron, called a riser, was removed, and the grate was reconstructed.

Lamontagne could not confirm whether the 24 grates violated state construction standards, but he said an independent report on the accident by transportation officials from New York, expected to be completed by Friday, should address the issue.

He pointed out that there have been no additional cases involving grates on Route 128 since Swierczynski's accident. "We are identifying steps to prevent this kind of situation in the future," he said.

Two of the five defendants in the suit - the design firm of Purcell Associates of Dorchester and grate manufacturer Campbell Foundry Co. of New Jersey - could not be reached for comment. A spokeswoman for SPS New England in Salisbury declined comment.

A woman who described herself as a co-owner of Suarez & Sons in Westminster, another defendant, denied that the firm, which installed storm grates in Westwood as part of the SPS project, had any responsibility for the accident.

"We're just a subcontractor, and we just install what's given to us," said the woman, who declined to give her name. "We've been doing this for over 30 years and never had a problem."

A spokesman for the fifth defendant, Aggregate Industries of Saugus, said she had not yet seen the lawsuit, but "we would not expect that Aggregate would be held liable."

When the 24 grates in the Westwood stretch were first installed in 2006, they were located outside traffic lanes, according to the lawsuit.

But on July 25, two days before Swierczynski's 5:30 a.m. accident as he drove to work, SPS temporarily rerouted traffic so that vehicles drove directly over the cast-iron grates, according to the suit.

Almost immediately, motorists began reporting that the grates in the northbound lane were coming loose. Luanne Jacobs of Norwell said she told State Police about a grate near Exit 13 that was jutting up 8 inches from the road. "Both me and my husband said, 'Wow, this is pretty dangerous,' " she told the Globe in July.

That same day, Robert Spearin of Taunton suffered at least $4,000 in damage to his car when a storm grate hit the front end, said Norton, who interviewed Spearin.

"If the guy had been a little further ahead or a little further behind, he could have been hit in the head," said Norton, saying that after Spearin's car was hit, work crews placed the errant storm grate back in its hole without securing it. Spearin could not be reached for comment.

The next day, Jennifer Hilbert of Arlington escaped injury when a loose grate crashed into the front of her vehicle in the same area.

In response to the motorists' complaints, Paiewonsky directed SPS "to secure all 24 storm grates in the construction zone to their bases to prevent any further dislodgment," according to the lawsuit filed yesterday in Suffolk Superior Court.

But the lawsuit alleges that the repairs were fundamentally flawed because SPS workers were welding the grates to iron frames that were not secured to the drainage pipes below. As a result, when heavy vehicles passed over the grates, they were still vulnerable to being launched into the air.

"My client was struck by a grate while it was still attached to the frame," said Norton.

The grate hit Swierczynski so hard that it bent back the right side of the driver's seat and nearly amputated a finger, Norton said. When emergency workers arrived, Swierczynski was conscious but thrashing amid the broken glass and toys inside the car. He suffered serious head and back injuries. For the next four weeks, Norton said, Swierczynski did not speak.

Today, Swierczynski remains hospitalized at Spaulding Rehabilitation Hospital, where he continues to suffer bleeding in his brain and must wear a back brace to protect his fractured vertebra, Norton said. Though he can carry on conversations, the lawsuit said Swierczynski still suffers significant memory loss and cognitive deficits. So far, the father of an 11-year-old son and 5-year-old daughter has incurred more than $200,000 in medical bills, according to the complaint.

Norton acknowledges that he does not know exactly who is responsible for installing the wrong grates on Route 128, whether SPS ordered the wrong grates or Campbell made a mistake in manufacturing or the designers at Purcell called for the wrong hardware?

But he said all the companies as well as the state should be held accountable for the accident. He said his Quincy-based firm expects to sue MassHighway, even though state law limits the damages that can be collected from the agency to $100,000.

"Truly, it's a failure on multiple levels," he said, and one that may not be over. He has a photograph showing cars were still driving over the waffle-style grates last week.

Scott Allen can be reached at allen@globe.com.

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