Safety and OSHA News

Why did court allow injured worker to sue his employer?

It’s rare that a court allows an injured worker to sue his employer besides collecting workers’ compensation benefits. Why did that happen in this case? 

On July 26, 2008, a powerful dust explosion occurred at ICO Polymers North America’s Asbury, NJ, facility. The explosion propelled burning powders onto Medwin Soto, an ICO employee. Soto suffered second and third degree burns on 12% of his body. He received workers’ comp benefits.

But Soto also sued ICO. New Jersey’s Workers’ Compensation Act allows an employee to sue only in cases where the employee’s injuries result from the employer’s “intentional wrong.”

What counts as an intentional wrong? An employee must show the employer acted with “substantial certainty” that injury or death would occur. Knowledge of a risk doesn’t qualify as an intentional wrong.

Plant had previous explosion

Here’s the background in this case:

ICO’s business included grinding plastic pellets into powder. This process created a fine dust, and many of the materials that were pulverized were highly explosive. This meant the Asbury plant was classified as a hazardous location – a classification that came with specific safety requirements.

On July 2, 2007, accumulated combustible dust ignited at the Asbury plant, injuring one employee and causing significant damage to the facility.

OSHA observed up to two inches of dust on top of the facility’s masonry walls and ceiling beams. The agency issued two citations, one for poor housekeeping and another for unsafe wiring methods and installations for a hazardous location. It fined ICO $7,500. ICO agreed to abate hazards at its Asbury location.

The following month, ICO’s President sent an email to senior managers expressing concern for the danger associated with the presence of combustible dust. ICO’s President said dust accumulation must be kept under 1/16 of an inch, and if accumulations exceed that level, systems must be shut down and cleaned.

In November 2007, a safety coordinator at ICO’s Asbury facility sent a letter to an inspector of the New Jersey Department of Community Affairs stating that the company intended to use the building damaged in the explosion only as a warehouse and not for manufacturing. Therefore, the building would no longer be classified as a hazardous location and it wouldn’t require a sprinkler system upgrade.

Despite that, ICO continued production at its Asbury facility.

On July 14, 2008, the New Jersey Division of Codes and Standards shut down ICO’s Asbury facility for fire code violations that included:

  • a non-functioning sprinkler system
  • a non-functioning exit door
  • electrical work installed without current protections, and
  • failure to provide exit signs above exterior doors.

The New Jersey Department of Community Affairs declared the building unsafe for human occupancy and prohibited anyone from occupying it until it was made safe.

ICO hired a contractor to install the necessary exit signs and lighting but didn’t tell the contractor about the building’s hazardous designation.

ICO was permitted to reopen the plant on July 17, 2008.

Just over a week later, the second dust explosion that seriously injured Soto occurred.

Although the exact ignition point for the explosion was never determined, a detective for the Hunterdon County Prosecutor’s Office said the electrical wiring for new exit signs could have started the explosion. The newly installed wiring didn’t have insulation to protect it from this type of explosion.

A state police detective noted dust was “pretty much on every surface” inside the building. A local fire official said “the entire facility was covered with dust.”

OSHA investigated and issued a repeat violation because the facility was “not kept clean and orderly, or in a sanitary condition” and as a result dust was allowed to accumulate and ignite, injuring Soto. OSHA fined ICO $12,500.

When Soto sued, a trial court granted ICO’s request to throw out the case, agreeing with the company’s argument that workers’ compensation should be the exclusive remedy. Soto took his case to a state appeals court.

The appeals court noted in the previously decided case Laidlow V. Hariton Machinery, the New Jersey Supreme Court was asked to decide whether an employer committed an intentional wrong when it deceived safety inspectors by disengaging and re-engaging the safety devices on a dangerous machine. For 13 years, the company would only engage the machine guard when OSHA inspectors were at the plant. Two employees reported close calls where their hands were nearly pulled into the machine.

The state’s top court cited prior close calls, the seriousness of any potential injury and the knowledge the company had about the hazard “revealed by its deliberate and systematic deception of OSHA.”

In Soto’s case, the state appeals court found that, after the first explosion in 2007:

“The evidence shows [ICO] failed to take the corrective action required to render the Asbury facility in compliance with the standards articulated by its own President, Eric Parsons, as reflected in his August 15, 2007 email. [ICO] affirmatively promised to abate any OSHA violations outstanding at the time of the July 2, 2007 explosion. However, the evidence shows [ICO] continued to allow combustible dust to accumulate in hazardous amounts … [ICO] engaged in a cost-benefit analysis and decided it was more economically sound to place [Soto] at substantial risk of serious injury or death than to repair the Asbury facility’s electrical system.”

In other words, the company placed profits over worker safety.

The appeals court reversed the trial court’s decision to throw out Soto’s lawsuit and sent the case back to the lower court for trial.

The lesson not learned by ICO: Failing to abate an OSHA violation as promised puts workers at risk of injury and the company at risk of facing an expensive lawsuit.

(Medwin Soto v. ICO Polymers North America, Superior Court of New Jersey, Appellate Division. No. A-3858-14T4, 10/11/17)

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