Fitzsimmons Law Firm recently filed a wrongful death lawsuit on behalf
of the family of a heavy equipment operator who tragically lost his life
in a construction site accident. The heavy equipment operator and his
crew were in the process of trenching and installing a pipe when a pipelayer
machine, which had been parked on a grade, inadvertently moved and drifted
backwards. When the machine shifted, the operator was pulled into the
machine causing critical and fatal crush injuries.
In the underlying Complaint, the plaintiff brought a cause of action against
the manufacturer of the pipelayer for product liability asserting that
the machine was defectively designed and manufactured in that it was unreasonably
dangerous and presented an increased risk of serious injury and/or death
when used for its intended purpose. Specifically, the Complaint states
that the pipelayer was not equipped with a properly functioning Operator
Present System (OPS) or other engineering control which should have prevented
the pipelayer from inadvertently rolling backwards.
The plaintiff also asserted claims against the employer of the decedent
alleging that the employer acted with "deliberate intention"
and violated W.Va. Code § 23-4-2(d)(2)(i) and (ii). In West Virginia,
an employer is not granted immunity under the workers' compensation
system if the employer acted with "deliberate intent" which
essentially means that that employer knowingly exposed an employee to
unsafe working conditions which presented a high degree of risk and a
strong probability of serious injury or death. Here, the plaintiff asserted
that the employer intentionally exposed the heavy equipment operator to
known unsafe working conditions by,inter alia, violating manufacturer procedures and specifications applicable to the
operational function of the pipelayer; failing to develop and implement
proper parking and securement practices for equipment parked on a grade;
failing to require the use of blocks or chocks for equipment parked on
a grade to prevent it from rolling and/or accidental movement; and failing
to maintain the pipelayer in a safe working condition.
The Complaint further alleges that as a result of the subject incident,
the employer was issued 2 "Serious" citations by the Occupational
Safety and Health Administration (OSHA) for violating applicable OSHA
regulations, including 29 C.F.R. 192.147(a) for failing to comply with
all manufacturer procedures applicable to the operational functions of
the equipment, including its use with attachments, and 29 C.F.R. 1926.21(b)(2)
for failing to instruct each employee in the recognition and avoidance
of unsafe conditions and the regulations applicable to his/her environment
to control or eliminate any hazards or other exposure to illness or injury.
The case is currently pending in the Circuit Court of Marshall County,
West Virginia. The plaintiff is seeking all damages permitted under law,
including medical bills; funeral, burial, and memorial expenses; the lost
wages and benefits of the decedent; lost household services of the decedent;
and other wrongful death damages including the loss of the decedent's
society, companionship, comfort, guidance, kindly offices, advice, services,
protection, care and assistance; and severe and extreme mental anguish
and solace suffered by plaintiff's decedent's surviving family members.
Fitzsimmons Law Firm PLLC has a proud history of standing up for injured
workers and the family of workers killed on the job. Our attorneys have
represented workers injured or killed on the job in numerous types of
claims including coal mining accidents, oil and gas accidents, workplace
explosions, electrocutions, chemical and toxic exposure, construction
and industrial accidents, and burn injuries. Our trial attorneys have
secured over $850 Million in verdicts and settlements for our clients,
including 160 cases in excess of $1 Million.