Family Files Lawsuit Alleging Construction Site Fatality Caused by Defective Machinery and Unsafe Work Practices

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.


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