Safety and OSHA News

Can dead worker’s relatives sue employer for wrongful death?

It’s difficult for relatives of a deceased worker to sue an employer for wrongful death because workers’ comp is considered the “exclusive remedy.” But this state has an exception to that rule. Did this case fit the exception? 

Zachary Henzerling worked for Environmental Enterprises Inc. (EEI), a company in Ohio that specializes in industrial and hazardous waste disposal.

A company had shipped industrial air filters contaminated with sodium chlorate to EEI for decontamination. Henzerling and another EEI employee were assigned to decontaminate the filters. A regulatory deadline for the disposal of the air filters was rapidly approaching, and they had to be disposed of quickly.

A supervisor advised the two workers that it was OK to use a saw to remove metal casings from the filters. When they did, a filter quickly caught fire, and nearby boxes of filters also erupted into flames. Henzerling was severely burned and died that day.

Henzerling’s estate sued EEI for intentionally causing his death.

What caused the fire? Heat from the saw combined with the sodium chlorate and organic material that the air filter was made of. EEI says it wasn’t aware that the air filters contained the organic material which was flammable.

Paperwork provided with the filters said the total organic content was less than one percent. The paperwork said the filters had a low risk of burning.

EEI’s president testified the company wouldn’t have accepted the filters for disposal if it had known they contained organic material. The EEI facility wasn’t the proper place to treat that type of waste.

A hazardous materials safety expert for Henzerling’s estate said EEI should have discovered the filters were made of organic material and submersion tanks should have been used to safely decontaminate them before cutting away the metal casings.

A trial court granted EEI’s request to throw out the lawsuit. An appeal followed.

Ohio’s workers’ comp law doesn’t allow wrongful death lawsuits against employers with this exception: when the employer deliberately intended to cause injury to the employee. It can be shown that an employer acted with deliberate intent to injure an employee if an injury resulted from the deliberate removal of an equipment safety guard.

Henzerling’s estate argued EEI’s failure to require the workers to use a submersion tank before cutting away the air filters’ metal casings was deliberate removal of an equipment safety guard.

Under Ohio’s comp law, an equipment safety guard is defined as “a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.”

The state’s supreme court ruled in a previous case that “free-standing items that serve as physical barriers between the employee and potential exposure to injury … are not ‘an equipment safety guard.'”

The Ohio appeals court found the submersion tank was a free-standing item which may have created a safer workplace, but it wasn’t designed to protect a worker from equipment.

Henzerling’s estate also argued that, in the waste-processing industry, a submersion tank was considered an equipment safety guard. But the appeals court said the definition of equipment safety guard comes from case-law, not industry standards.

But hadn’t EEI acted recklessly because it was under pressure to quickly dispose of the filters? The court said there was no evidence that EEI knew the filter material was organic and flammable.

The appeals court upheld EEI’s motion to throw out the lawsuit. The definition of equipment safety guard in Ohio is a narrow one.

(James T. Henzerling et al v. Environmental Enterprises Inc., Court of Appeals of Ohio, First District, No. C-160232, 5/5/17)

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