“Pain, increasing shortness of breath, increasing fear, increasing terror, and awareness of impending death.” That’s how a medical expert described the asphyxiation deaths of two workers at a commercial laundry. Now a court has upheld an almost $3.37 million award to the families of the two victims.
North East Linen Supply Co. operates a large-scale commercial laundry in Linden, NJ. The facility included a wastewater tank, about 15-feet high and 8-feet across. The only ventilation where the tank was located was a large door and several windows, all of which were kept closed in cold weather. The tank was used to adjust the pH level of wastewater by adding sulfuric acid which made it safe to be drained into the sewer.
A sign on the side of the tank warned, “Danger – confined space – enter by permit only.”
The company had a written policy regarding the wastewater tank. Among the listed rules: “Under no circumstances will any employee enter the inside of the tank.”
In late 2007, Carlos Diaz and Victor Diaz Jr. were new employees at North East Linen.
On Nov. 30, 2007, the company’s maintenance manager, Peter Aguirre, told Carlos to clean the tank the following day. The tank was drained for cleaning.
Aguirre says he told Carlos to stand on the platform next to the tank and spray down the inside with a pressure washer. He says he didn’t give any instructions to Victor.
Despite the sign, written rules and Aguirre’s testimony about what he told Carlos, Aguirre also testified he knew of at least two instances in which employees had entered the tank to clean it.
Carlos and Victor came to work on Saturday, Dec. 1, to clean the tank. On that day, another manager found the two men lying unresponsive, face-down in a couple inches of liquid at the bottom of the wastewater tank. They were declared dead at the scene.
Emergency responders tested the air in the tank and found levels of hydrogen sulfide and carbon monoxide were well above safety guidelines. Only two windows in the room with the tank had been cracked open.
Both men suffered chemical burns to half of their bodies, including their faces and eyes, as well as pulmonary edema and foam in their lungs indicating inhalation of chemical fumes. The medical examiner declared the cause of death to be chemical fume inhalation.
The only protective gear that Carlos and Victor wore were latex gloves, dust masks and plastic sheeting taped around their shoes.
Carlos’ and Victor’s families (they weren’t related) sued North East Linen for wrongful death. A jury awarded $1,461,000 to Carlos’ family and $1,907,605 to Victor’s family. The company appealed.
During the jury trial, a medical expert for the families testified the chemical burns would have caused intense pain, and the pulmonary edema and foam would have caused them to feel like they were drowning. The expert said it would have taken “at least five to ten minutes” for the men to lose consciousness. “Their last moments were awful,” he testified.
Was this an ‘intentional wrong?’
New Jersey law says if workplace injuries or deaths are eligible for workers’ comp, workers or families can’t sue except for “intentional wrong.”
This is the test to determine whether an employer’s conduct constitutes an intentional wrong:
“(1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Act to immunize.”
A large part of this case centered on Aguirre’s intentions and credibility. The appeals court found that, given the previous occasions when workers entered the tank to clean it, a reasonable juror could have found Aguirre intended for Carlos and Victor to enter the tank and could have called the credibility of his own testimony into question.
The appeals court said it was reasonable for the trial court to find that, without proper training, the toxic conditions inside of the tank were “more than a fact of life of industrial employment,” and “plainly beyond anything the Legislature intended the Act to immunize.”
The appeals court also agreed with the trial court’s finding that, “this was a case of willful failure to remedy past violations, and repeated deception by the company not just to its own employees, but also to federal and state regulators as to what really was going on at this facility in the wastewater treatment.”
The appeals court upheld the jury verdict and monetary awards to both men’s families.
What do you think about this case? Let us know in the comments.
(Alberto v. North East Linen Supply Company, Superior Court of New Jersey, Appellate Division, No. A-4337-13T4, 2/1/16)
