Note: This is a summary of an actual case of public record that I handled. I will use generic names instead of actual identities. Unless the case was tried to verdict, any settlement or resolution was with the defendant party not admitting any fault or liability.

This is a story of why I do what I do.

The Victim

Joe had lost his parents at an early age, and was raised in the Cal Farley’s Boys Ranch outside of Amarillo, Texas. He loved his new wife and kids, fishing, and sweet tea. Living in southern Oklahoma, he was happy to apply and land a job at a new manufacturing plant where he would have a job working inside on those hot summer days.

Background

In its simplest summary, Joe’s job was to paint aluminum window trimming. In theory, Joe would be directed as to which of several colors of paint he was to connect a hose. After choosing the color by turning a mechanical switch, Joe would then screw the end of the hose into his paint gun and spray it on the window trimming as it went by him hanging on a conveyor belt. If not done correctly, however, what looked professional and harmless was actually a very dangerous workplace – as Joe would soon find out.

To make the paint stick to the trimming, the trimming was magnetized. In turn, Joe’s paint gun was an electrostatic paint gun that had a power source to which it was plugged in, so that when he sprayed the paint, the paint was also magnetized, resulting in the paint sticking to the trimming and not dripping off. When the next set of trimming required a change of color, Joe was to turn off his electrostatic machine that was charging his gun, unplug the paint hose from his gun, and replace it with a hose coming from a can of cleaning fluid, and spray the cleaning fluid through his gun and into a 55-gallon drum of waste fluids. This process would clean out the gun of the last color of paint he just used, and when clean, Joe would disconnect the cleaning fluid hose, and replace it with the hose from the new color of paint to be used. Joe would then turn back on his electrostatic power source and begin painting the next group of trimming with the next color.

What Could Go Wrong?

A lot could, and did, go wrong. The safety engineers who devised this system had to appreciate that there would come a time when the painter would forget to turn off his electrostatic paint gun power source before he runs the cleaning fluid through it. We all make mistakes and forget some of the simplest steps, and three weeks into his dream job, Joe forgot that step. Anticipating the employee would eventually make that simple mistake, the safety team should have protected their employee from the deadly consequences by ensuring the 55-gallon drum that is receiving the cleaning fluids is well grounded so as to not permit sparking and fires. In this instance, the employer did not require grounding of the drum, so neither the safety team nor Joe’s supervisor grounded it. This was clear negligence by the employer and set the stage for a tragic – yet clearly foreseeable – accident.

A Perfect Storm

To compound the hazardous workplace, the employer chose a cleaning solution with an extremely dangerous flash point, which means that under just the right conditions, it would ignite much easier than other equally effective cleaning solutions. The use of this particular cleaning solution violated OSHA regulations when used as intended. On what would be his last day of work, Joe began to spray the electrically-charged old paint and cleaning mixture into an ungrounded drum, and as fate would have it, the drum was about 50% full so that there was the perfect mixture of charged fuel and air, a perfect storm for an explosion.

My Role

Although she would call me daily and bring me up to speed on Joe’s treatment, it would be three weeks before I was officially hired by Joe’s widow because the next seventeen days would be spent by her and Joe in the burn unit at Parkland Hospital in Dallas. Joe had burns over 82% of his body, and spent the last days of his life on morphine while healthcare workers picked the skin off his body. In the meantime, I met with fellow employees who described a 55-gallon drum blasting off and like a rocket until it hit the ceiling 40 feet above Joe, spinning the whole time and spewing this deadly mixture on Joe and others. The employees tackled Joe as he ran through the workplace on fire, and to hear them explain it, as soon as they would pat out the fire on his head – it would just burst back into flames.

The Case

Since his employer carried worker’s compensation, Joe’s widow could only sue and seek punitive damages, a much higher standard to meet for liability. I felt confident from the get-go. At the very least, the negligence in this case was: (1) failing to design a electrostatic charge that had a reminder or automatic shutoff built into the sequence so that it would be turned off prior to cleaning; (2) failing to ensure grounding was used on the paint/solvent receiving drum; and (3) providing a highly chargeable cleaning solution instead of one that met OSHA regulations. During pretrial discovery, I took the deposition of the investigator for the parent company, who admitted under oath that, “This was the worst case of a lack of safety I have ever seen in a workplace. It was not just negligence, but gross negligence.” Gross negligence was the standard I had to meet. The case was resolved prior to trial.

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