Posted in: Fatality, Lawsuits, new court decision, Safety training, Safety vs. production, Special Report, State OSHAs, Teen workers, What do you think?, Workers' comp, Young people and safety
A company removed guards from a shredder, assigned an underage employee to use it and didn’t train him. The teen was crushed to death in the shredder. Does the teen’s family have a case for wrongful death, or are they limited to workers’ comp death benefits?
Seventeen-year-old Nery Castaneda Valenzuela was killed while working for Pallet Express.
One day, Valenzuela was working at a pallet shredder with another employee. The supervisor was late for work that day. The other worker left the machine to get a forklift.
When the other worker returned, Valenzuela wasn’t there. Moments later, his remains were found on the discharge side of the shredder.
North Carolina OSHA issued 11 violations including:
- allowing an underage employee to work on heavy equipment, and
- removing safety guards from the shredder.
Workers’ compensation is usually the exclusive means for the family of someone killed on the job to be compensated for the death.
However, there is an exception. In North Carolina, the exception is “where an employee is injured or killed as a result of the intentional misconduct of the employer.”
Valenzuela’s family filed a wrongful death lawsuit, under the intentional misconduct provision of the comp law.
The company asked for the lawsuit to be thrown out because no one witnessed the fatality.
The trial court threw out the lawsuit, and the family appealed.
The family argued that the company engaged in intentional misconduct by:
- removing safety guards from the shredder which sacrificed employee safety for increased production
- assigning an underage employee to work on heavy equipment in violation of state and federal law
- failing to provide Valenzuela with proper training on the shredder, and
- failing to ensure that trained personnel were present when the shredder was operated.
The appeals court agreed with the trial court. It said the evidence failed to show that the employer knew that its misconduct was substantially certain to cause serious injury and was so egregious that it would be considered intentional harm.
The verdict: The case was thrown out. The family was limited to collecting death benefits through workers’ comp.
(Valenzuela v. Pallet Express, Court of Appeals of NC, No. COA10-87, 10/5/10.)
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