Fitzsimmons Law Firm Files "Deliberate Intention" and Product Liability Lawsuit On Behalf Of Worker Injured In Workplace Accident

The Fitzsimmons Law Firm recently filed a lawsuit on behalf of a worker injured on the job while operating a rolling mill machine. According to the Complaint, the worker was operating a milling machine when he attempted to remove silicone from the wheel with his bare hand pursuant to his job instructions and duties. As he was removing the silicone, his hands became stuck to the silicone thereby trapping his hands on the wheel and rendering him unable to free himself. Despite the plaintiff's hands being stuck to the machinery, the rolling mill continued to operate and pulled both of the plaintiff's hands between the wheels, thereby crushing the plaintiff's hands and degloving his left hand. The plaintiff remained trapped in the machinery for approximately ten minutes until he was finally freed by a co-worker who used a sledge hammer to wedge apart the wheels. As a result of the crush injuries, the plaintiff went into shock and had to be life-flighted to a nearby hospital.

The worker asserted a "deliberate intention" claim against his employer pursuant to W.Va. Code §23-4-2(d)(2)(ii). Typically, an employee cannot sue his employer for a work related accident in West Virginia. However, there is an exception in the workers' compensation laws which permits an employee to file a civil claim against his employer if the employee can prove that the employer acted with "deliberate intent." To prove deliberate intent, the employee does not need to show that the employer acted with a specific intent to harm the employee. Rather, the employee need only prove essentially that the employer knowingly exposed the worker to an unsafe working condition which constituted a violation of an OSHA or MSHA regulation or some other safety statute or written industry standard.

According to the Complaint, the employer acted with deliberate intent by intentionally exposing the plaintiff to known specific unsafe working conditions which presented a high degree of risk and strong probability of serious injury or death by, but not limited to: failing to furnish the plaintiff with employment and a place of employment which was free from recognized hazards that were likely to cause death or serious physical harm; failing to train the plaintiff on the proper and safe use of the rolling mill; failing to conduct a job safety analyses (JSA) prior to the commencement of work; failing to provide proper machine guarding; failing to ensure that all machines are properly guarded to protect the operator from hazards; failing to utilize appropriate hand tools for placing and removing materials from machinery to permit easy handling of the material without placing the operator in danger; failing to utilize proper rolling mill safety controls; failing to perform a hazard assessment of the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE); failing to select and require proper PPE that will protect affected employees from the hazards identified in the hazard assessment; failing to provide training to each employee who is required to use PPE; and failing to select and require employees to use appropriate hand protection when employees' and/or workers' hands are exposed to hazards.

The plaintiff also asserted a product liability claim against the manufacturer and distributor of the milling machine alleging that the milling machine was negligently and defectively designed and that they further failed to adequately warn about the risks and harms associated with using the milling machine.

As a result of the accident, the plaintiff has incurred severe and permanent disabling injuries, medical bills, lost wages and benefits, future lost wages and earning capacity, lost household services, extreme physical pain and suffering, permanent physical impairment and disfigurement, and loss of capacity to enjoy life and engage in normal activities.

The trial lawyers at the Fitzsimmons Law Firm believe that every worker is entitled to a workplace free of hazards. That is why we have devoted over 30 years to protect workers injured on the job. Our work injury lawyers have successfully represented injured workers in a wide variety of claims, including coal mining accidents, construction accidents, electrocutions, explosions, and oil and gas accidents. Our offices are headquartered in Wheeling, West Virginia but we represent injured workers throughout West Virginia, Ohio, and Pennsylvania.


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