A widow is suing a Texas company, alleging it took the employer two hours to get an ambulance for her husband who had fallen several feet and hit his head. She also claims a drug test was ordered before anyone called 911.
Benino Perez, 67, had worked for Texas Industries (TXI), a cement and construction company, for 38 years.
On July 2, 2011, he was working for TXI in Dallas when he fell, gradually lost consciousness and died several hours later in a hospital.
His widow, Alejandra Perez, alleges in a lawsuit that while Benino was laying unconscious on the ground a fellow employee ordered a drug test. The lawsuit claims co-workers unzipped his pants and took urine from him and that it was two hours after the fall when paramedics were finally called.
She is suing the company for $15 million for actual and punitive damages. The suit claims the company was negligent for failing to train employees and provide proper equipment, and for the wrongful death of her husband.
OSHA investigated but issued no fines in the case.
She is receiving workers’ comp death benefits, and the company paid for Benino’s funeral.
TXI denies Perez was given a drug test and that the call to 911 was delayed.
The company says 911 was called after one of the company’s drivers noticed Benino walking irregularly with blood coming from his nose.
“At any time when a TXI employee has immediate medical needs, the first and highest priority is to ensure that their needs are promptly met,” said TXI in a statement. “Any drug testing analysis would have been done under the care of the paramedics or at the hospital.”
Alejandra’s lawyer says one witness said there were cameras that may have recorded exactly what happened, but they were removed the next day.
A TXI vice president said the cameras weren’t facing the area where Benino was working and the fall and its aftermath weren’t recorded.
Of course, workers’ comp is usually the exclusive remedy in cases in which a worker is injured or killed on the job. One exception is intentional tort, in other words, the employee is injured or killed as result of an intentional act by the employer that was known to be certain to cause serious injury or death.
In this case, even though the alleged drug test before calling 911 would be an egregious act, the lawsuit most likely can’t turn solely on that point. That’s why negligence for failing to train employees and provide safety gear is also included.
If it can be proven that there was a delay in calling 911 for obtaining a drug test, should that enter into a decision in this case? Let us know what you think in the comments below.
(A copy of the lawsuit is available here.)