New York Wrongful Death Lawyer Blog

A 51 year-old man was crushed to death when he climbed in the back hopper of a Heil Formula 7000 garbage truck and attempted to clear debris which was jammed, preventing a "compactor blade" from moving.

He perished when the hydraulic system engaged, and a safety mechanism which would have saved him failed.

The City of Norfolk originally said that the man had "violated a city policy" by climbing in the back of the truck.

Later, state investigators confirmed that it was "city policy" for sanitation workers to do so; otherwise, any jamming issue would necessitate leaving the trash route and returning to the maintenance shed for loosening or repair.

The Virginia Department of Labor and Industry investigated this occurrence and found 8 "serious (life threatening) violations" related to this accident. For example: the safety system on the truck was supposed to be checked daily. That did not happen.

A well-spoken Norfolk councilman stated "Some heads should roll on this..."

[As reported by Harry Minium in The Virginian-Post, October 12, 2011]

Last April, in a blog entry Walworth Man's Death at Construction Site Under Lake Ontario Subject of OSHA Investigation, I wrote about a man who was killed while employed boring a water treatment tunnel under Lake Ontario.

Thomas W. Means, age 45, died of a head injury when the small underground train locomotive he was driving ran into a conveyor on the boring machine.

In October, the Department of Labor's Occupational Safety and Health Administration completed its investigation. OSHA blamed the contractor, Southland Contracting Inc., of Fort Worth, TX, and fined it, $55,440 for seven safety violations that OSHA said led to the death.

Six of the violations were "serious", meaning that they could cause a substantial probability of death or serious injury: A fuse blew in the electrical system, causing lights to go out in the tunnel (sixteen stories deep in the earth); the locomotive driven by Mr. Means had "bumper blocks" missing, was pushing an "unattached car", and had not been inspected for modifications and repairs.

OSHA also found a repeat violation by Southland Contracting Inc.: it failed to instruct its employees in anticipating and avoiding "crushing hazards".

The Occupational Safety and Health Administration, will investigate the April 11, 2011, death of Thomas W. Means, a construction worker, who was killed when he fell off a small underground locomotive in a tunnel 16 stories below ground, deep under Lake Ontario.

The Occupational Safety and Health Act was created by Congress and became law in 1970. Its' mission is to prevent work-related injuries, illnesses, and occupational fatality by issuing and enforcing standards for workplace safety and health.

Over the years it has brought about change in industrial safety practices, in areas which may be relevant to this matter, including working in "confined space" and "excavation and trenches".

According to reports, Mr. Means was run over by the locomotive. He was part of a five man crew, tunneling through bedrock, as part of a Monroe County Water Authority project designed to boost the production capacity of the system. The mini-railway is used to remove rock debris from the area cleared by the rotating drills, which will eventually tunnel 6,000 feet.

Whether there was a "wrongful act, neglect or default" [required for a viable wrongful death action] which caused or contributed to Mr. Means death remains unclear, pending interview of any witnesses to the accident, and completion of the OSHA investigation.

Shortly after the deadly blast that killed 29 coal miners at Massey Energy Co. facility in West Virginia, the company's board met by phone and agreed to offer each deceased miner's family the sum of $3 million.

That amount, it was thought, would help the miner's dependents financially, and help to stave off a wave of anticipated litigation over the cause of the explosion.

The Massey offer was greater than the average wrongful death settlement, which was $1.8 million in 2009. It is less, however, than the average jury verdict for wrongful death, $7.8 million for the same year.

It has become standard operating procedure for large companies to offer settlements in cases of workers killed on the job, for example, in the following cases involving explosions: the 11 workers on the BP oil rig; the 4 killed on the California gas line; and the 6 killed in the Connecticut power plant blast.

By early December, nine months after the offer had been made, only seven of the twenty-nine families had accepted it. Only three of those had been finalized by court action. Clearly the lure of certainty was not a decisive factor in the decision making process.

Some relatives did not appreciate the assigning of a dollar value to their kin.

Some just want their day in court.

Others have retained attorneys, and are waiting for the result of state and federal investigations into the cause(s) of the blast. If Massey Energy Co. was blamed for intentionally or recklessly causing it, punitive damages may become part of the damage equation.

The families can afford to take their time in consideration of the settlement offer. Widows are receiving miner's full salaries, from Massey, for the rest of their lives, or until they remarry. Medical benefits, child care expense and in-state college scholarship money is also available.

The material used for this entry is from the Wall Street Journal Dead Miners' Kin Wrestle With Choice to Settle or Sue, by Kris Maher.

A 20 year-old student at the University of Notre Dame was killed when the scissor lift he was perched on while videotaping the Fighting Irish football practice, toppled over during a period of high winds on October 27, 2010.

Declan Sullivan was on a hydraulic lift at a time when the National Weather Service reported wind gusts of up to 51 mph.

Given the facts, it is likely that state and federal workplace safety rules and industry standards were violated. Investigations by a variety of agancies are underway.

It is reported that Mr. Sullivan sent several "haunting" Tweets that appeared on his Facebook page just before his death, indicating his fear of the conditions he faced.

To the University's credit, on November 5, the Rev. John Jenkins, Notre Dame President, sent an e-mail to students, faculty, staff and alumni, acknowledging responsibility for the death, because the school "failed to protect him".

Over years of practice, I have found that many lawsuits would or could be avoided, if only the party or parties involved would admit or acknowledge their responsibility for what happened.

After all, it is the right thing to do.

The Boston Globe reported that the family of a firefighter who was killed in the line of duty has recently brought a wrongful death action.

Apparently, on January 9, 2009, the brakes on a ladder truck failed, allowing it to careen down a street in the Mission Hill section of Boston. It bounced off some parked cars, went through a brick wall and crashed into a building.

The firefighter was a passenger on the rig. He died of head injuries.

The suit filed in Suffolk Superior Court, MA, names six entities who serviced the truck's brakes, which were found to have "severely reduced braking power". Negligence and faulty brake work is alleged against the private vendors who worked on the truck.

The case should be technically interesting and potentially complex, as Plaintiff has the burden of proving a "wrongful act, default or neglect". Each of six defendants will say "It wasn't me!", point the finger at each other, and probably at the Fire Department's own maintenance program.

A 44 year-old employee of the Finger Lakes Service Group fell from the roof of a building under construction near the old Genesee Hospital in Rochester, and died from his injuries shortly after being taken to Strong Memorial Hospital.

Other than that the death involved a fall of a worker on a construction site, there is no further information contained in the March 5, 2010, Democrat & Chronicle article by Gary McLendon.

A wrongful death lawsuit based on facts as presented here would seek monetary damages from the owner of the project, and the contractors involved, alleging causes of action under Labor Law §§240(1), 241(6), 200(1), and for common law negligence.

Labor Law § 240 (1), commonly known as the Scaffold Law, provides, in part, that: "All contractors and owners and their agents... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed".

Labor Law § 241 (6) requires owners, contractors, and their agents to "provide reasonable and adequate protection and safety" for workers performing the inherently dangerous activities of construction, excavation and demolition work. Under this section of law, a plaintiff has the burden of identifying one or more provisions of the New York State Industrial Code, that were alleged to be violated.

Labor Law § 200 is a codification of the common-law duty imposed upon owners and general contractors to maintain a safe workplace.

In a death case such as this, one or more governmental entities, such as the NYS Department of Labor, or the Occupational Health and Safety Administration (OSHA), will conduct an investigation of the occurrence.

It may be determined that, under the circumstances, the accident was unavoidable. However, if it is shown that there were violations of safety codes, the applicable portions of the Labor Law may be used as basis for suit.

Although the report says that the unfortunate worker was not conscious when he was taken from the scene by ambulance, any plaintiff would also sue for conscious pain and suffering, including "pre-impact terror" for the fall the man took from the roof.

The Associated Press reported on January 5, 2010, that a West Virginia mother has filed a wrongful death lawsuit against a doctor, his medical practice, and the manufacturer of the filing cabinet.

Her 17 year old daughter was found, dead, pinned between a five-drawer filing cabinet and a Jeep, in a storage building where she had been filing papers.

The suit accuses the doctor, who happens to be president of the state Board of Medicine, of failing to provide a safe and non-hazardous work environment.