Safety and OSHA News

Does company have to pay for emotional injury?

An employee of a contractor sued BP for mental anguish in connection with the 2005 explosion that killed 15 at its Texas City, TX, facility.

Before the explosion, three of the workers supervised by David Senko told him that they were considering quitting or leaving for other jobs. Senko convinced them to keep their jobs.

They died in the explosion.

Senko was not in Texas when the explosion occurred. After the incident, Senko’s supervisor asked him to return to Texas to help identify those killed.

Senko claims to have suffered mental anguish and physical injuries including anxiety, shingles, hypertension and hypercholesterolemia.

He sued BP, claiming it was liable for negligence and intentional infliction of emotional distress. He wanted damages for physical injuries and mental anguish.

BP asked that the lawsuit be thrown out.

The court agreed with BP and threw out the case. It said someone can not successfully sue unless severe emotional distress was the primary risk created by the company’s reckless conduct.

The court said Senko could not prove that emotional distress was the primary risk of BP’s negligence in maintaining the refinery.

What do you think about the court’s decision? Let us know in the Comments Box below.

Cite: Senko v. BP, Court of Appeals for the First District of TX, No. 01-08-01022-CV, 11/5/09.

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  1. It was a good ruling. TX state law does not permit mental anguish as a WC claim. The guy feels giulty for persuading the dead workers to stay, however it was their choice to stay. We shouldn’t reward him for feeling badly.

  2. The company had no intent to inflect emotional distress on this worker. As the supervisor, he had a responsibility to come and help identify the deseased. Though tragic it was, in order to sue, and I can see where would have been emotionally injured, intent of intentional infliction of emotional distress could not be proven. The courts got it right.

  3. Rick Ackerman says:

    A key factor here is that the employer ASKED him to return for this purpose. This at least implies that he had some level of choice whether or not to accept the request to assist. If he denied the request and was made to feel that a denial would negatively impact his position, then one could argue that employer request MAY have been unreasonable. In such a unique circumstance it is doubtful that the employer could be held liable for an expected level of guilt associated with the incident.

  4. There is much more involved than this article states. Please google some pertinent keywords to get more of the story. My decision not to pursue appeals. Here are some brief facts:
    – Nothing to do with workmans compensation; however on that note, BP teamed with Entergy to persuade state of Texas to revise WC law to provide full immunity for damages to any employee on site, even if caused by criminal or negligent behavior. That is a crime in itself.
    – I was responsible for the project and lost 11 of my staff and about 200 hurt, many with no quality of life left. The aftermath began March 23,2005 and continues through this date.
    – I was directed to serve as company representative for all aftermath activities. Only reason I was not in the trailer myself was for an emergency trip to another BP refinery for serious safety situation. When I arrived, I shut down all the work when I found the worst conditions I have ever found on a construction site.
    – More has yet to be made public. Stay tuned.
    You’ll be shocked at what you find.

  5. Dave, we are sorry for your loss, and appreciate the fact that you were not present. I we may have guessed, we weren’t told the whole story. However, we still don’t feel that the company intentionally inflicted mential anguish, or physical pain to you in their request for you to ficillitate the aftermath of the explosion. I would love to read more about the story. I would say to you, as a supervisor, hold BP to the line with regards to a durable Safety program to prevent untimely deaths.

  6. I guess I’m just not acquainted with the concept of primary risk. Would that imply that secondary risks and hazards don’t count at all? Also I don’t really see how intent of the company has anything to do with this. Of course it was not the intent of the company to cause mental anguish, but I don’t think it was their intent to have any injuries or fatalities either. There may be a good case against companies being responsible for mental anguish since it is probably hard to substantiate a primary cause for mental anguish.

  7. Dominique says:

    the court was correct in this case. he cannot sue unless the company threatend unemployment if senko did not come to witness the body. (“Senko’s supervisor asked him to return to Texas to HELP identify those killed”.) what happened is…senko believed that he can take that mental distress. so, in this case his sickness resulted in his denial, not because of BP. He had a choice to say no…he said yes.

  8. Dominique says:

    lesson learned ” there is two sides of every story” take my comment back

  9. Why isn’t OSHA involved? I’m not disputing Mr. Senko’s right to sue. It seems like the decision may have come down to “semantics” – asked instead of implied threat to terminate if he didn’t comply. Mr. Senko’s damages aren’t covered because he came back to work and continued to accept positions that are reasonably stressful. I, as a juror, as an HR Professional, would want to know if you, at any time, told your boss that this stress was causing the above conditions. You have the obligation to do so. If he turns you down, you have the obligation to escalate, including sue. I’m not saying the situation wasn’t horrible, and that they may have been negligent but workers comp covers work related injuries that occur on the job – typically physical injuries related to the explosion. Trying to tie emotional distress back to the explosion after you continued to work, and accept what some would consider prestigious positions, in limelight, if you did complain is unclear, isn’t a workers comp issue. Unfortunately, I’m not seeing any way to sue for this particular case because it’s not tied to a Title VII concern. If you went to the doctor, asked the employer to accomodate you, then you may have had a case under the ADAAA.

    Just my thoughts.


  10. Dave, it is a travesty of true justice that huge corporations can sway otherwise decent people to change things to the corporation benefit, things that are put into place to PROTECT people by giving them the ability to hold these same corporations accountable. I have followed this tragic story, and what I keep hearing is people giving credence to BP, this time by commenting about the employees staying. Well, people need jobs. Yes, they have the ability to decide. They did not decide to die. I truly feel for you, what a horrible circumstance to be involved in. You need to remember that BP caused this with their careless attitude and negligent actions regarding the safety of their employees. Period. I wish you the best.

  11. Dave Senko says:

    Referencing previous comment from MAC regarding OSHA:

    OSHA was involved extensively. Regarding the incident itself, there were hearings, meetings, etc; at one point I was blamed for causing those to get killed or hurt for being there.

    Here is the most significant part regarding OSHA: Many, perhaps most, of the violations cited have been ‘multi-cited’. They were cited, assessed and fined in the several years prior to the isom blast; the same violations were cited, assessed and fined as a result of the isom blast ($42MM fine negotiated down to what was still a then record amount of $21MM) Several years pass after the isom blast, each year having at least one fatality and many serious accidents, then OSHA cited, assessed, and fined the SAME violations for a record setting amount over $80MM! To summarize, many violations have been cited many times and to this day, remain un-mitigated. In that light, I expect they will be fined again someday . . . and maybe not. There is something wrong with this picture, is there not? Oh, and I shouldmention these are not ‘routine’ minor violations; rather they are willful, serious, and agregious!

    All of the reports are public; dont take my word. Look for yourself, and in cases like mine where many lives are lost and injured, suicides occur, and careers ruined, NEEDLESSLY, . . . . it hurts.

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