Workplaces & Premises
This weekend I got to see my last movie at the Seattle International Film Festival. It was “Hot Coffee,” a documentary by Susan Saladoff. It made me incredibly proud to be in this profession and to work with some of the best trial lawyers in the country.
The movie is an absolute must-see. Period. Full stop. When the DVD comes out (later this summer), run, don’t walk to buy it. Better yet, you can see it if you have HBO later this month. It is not a dry, boring documentary: Al Franken and Paul Grisham keep things lively.
Although I work for a plaintiffs law firm, even I had misconceptions about the infamous “hot coffee” lawsuit against McDonalds. This documentary, however, is not just about opening everyone’s eyes to the jaw dropping injuries that Stella Liebeck, the then 79-year old woman sustained from spilling some scalding hot coffee on herself. It reveals how McDonalds had previously received 700 complaints about the ridiculously hot coffee.
Moreover, the film shows how some corporations have spent many hundreds of million dollars on distorting the truth about tort claims — from “tort reform” to caps on damages. Trial lawyers are conveniently pegged as the villains, while insurance companies are portrayed as the victims: a comedy and utter tragedy at the same time.
A doctor specializing in burn injuries explains in “Hot Coffee,” that the holding temperature for coffee was so hot that at best, if the coffee touched one’s skin for a few seconds, one would suffer 3rd degree burns. Regardless, McDonalds chose to ignore the obvious threat to its customers’ safety until brave Ms. Liebeck attempted to hold them accountable.
The film also features a couple of other poignant stories: One, about an ex-Halliburton worker who was brutally raped by her coworkers in Iraq; but denied the ability to sue her employer/employees thanks to a mandatory arbitration clause. The other story is a needlessly tragic situation, where one twin boy was brain damaged in utero, because of a negligent doctor. That family was essentially robbed of the jury verdict due to the state’s cap on damages.
Buy this DVD for all of your friends, family, neighbors, etc., so that they learn how many corporations are attempting to dismantle the civil justice system.
In case you missed it, an insightful editorial appeared in this Sunday’s The Columbian, “Courts keep failures by state agencies in check.” Magana and Wieland point out the serous problems with endorsing special legal protections for state government agencies whose negligent actions or inactions cause harm to citizens.
Importantly, Magana and Wieland explain that “government is never responsible for anyone’s actions but its own, and is never judged on any failures or bad choices except for its own.” Only if “but for” the government’s failures did an injury arise, then it could it then be held liable.
Please read the piece in its entirety for a thoughtful and accurate explanation to understand why we must continue to hold the government accountable via lawsuits in Washington state.
In the interest of full disclosure, one of the authors of this editorial is Jesse Magana, a client of Stritmatter Kessler Whelan.
As we head into this year’s first legislative session, the law firm of Stritmatter Kessler Whelan (SKW) wants to provide an informational resources via a new website, KeepWASafe.com. As the days and weeks progress, please visit it frequently for more information, which will help you understand why the agenda to bar lawsuits against the state for tort cases will make Washington less safer for all of us.
We welcome your comments and questions.
One day Teresa decided to swing by the workplace of her husband, Allan, to bring him lunch. Never did Teresa imagine that it would be the day Allan would die.
How can we begin to understand what she went through that terrible day? The denial. The horror. The fear. The unbelievable grief. She says: “I would pinch myself and wanted to wake up. I thought it was a nightmare.”
To get a sense of the loss suffered by this young widow, you have to know a bit of the story. Teresa and Allan met and fell in love in high school. All told, they were in a relationship with each other for almost half their lifetimes. Allan was a carpenter by trade. Teresa was a manager for an architectural firm. They owned a house that they worked on. They owned a piece of property they hoped one day to build on.
They were intensely in love and supported within their close knit extended family. That family spent almost every weekend and every special occasion getting together. Family was their life.
Allan was killed when the operator of a concrete boom owned by Ralph’s Concrete Pumping, didn’t follow the law and safe practice standards of the industry. The long nozzle attached to the boom of the concrete truck was improperly fitted with a metal piece at the end of the hose. Due to operator error, the hose suddenly whipped in the air like a giant serpent. The metal piece struck and killed Allan instantly.
The Department of Labor and Industries hired attorney Bill Bailey to bring a wrongful death lawsuit on behalf of Allan’s estate and against Ralph’s. Ralph’s blamed the concrete truck and so they had to be sued as well. SKW was hired by Teresa to bring her personal claim for loss of consortium. Consortium is the legal term that applies to a surviving spouse’s loss of fellowship, company, cooperation, aid, emotional support, love, care, affection, services, companionship and assistance.
Teresa actually did not want to bring a lawsuit at all. Nothing would ever bring Allan back. But Labor & Industries needed to recover money from Ralph’s for the amounts (of taxpayer money) it would be paying in widow’s benefits into the future. Because there was a lawsuit, Teresa finally and reluctantly agreed to bring a claim for loss of consortium. In response to the suit Ralph’s said they weren’t responsible.
They even tried to blame Allan.
Teresa began to see that even though a lawsuit would not bring Allan back, it still was a way to show him honor and respect. She felt that Ralph’s needed to be held accountable because Allan’s life was so precious.The lawsuit finally settled for a very good amount. But Teresa’s journey continues. Every day she lives without “the sunshine” of her husband. And every day is a struggle.
By Karen Koehler
This blog entry was originally posted on SpinalCordInjuryLawBlog.com.
The call comes from an attorney friend in another state. He is looking for a workers’ comp lawyer in Washington. A man has fallen on the job and is now quadriplegic . I ask what happened. I talk to my partners. We decide there could be a case because “Stute” might apply. What is Stute? And why did we take the case – not as a worker’s comp case – but as a personal injury lawsuit.
Washington made a deal with injured workers when it enacted Title 51 of our State Code. If you are injured on the job as a result of the fault of your employer, you give up your right to sue. In exchange the Department of Labor & Industries will provide workers’ compensation benefits (with insurance premiums paid by employers). But there are exceptions
Sometimes a person injured on the job can bring a lawsuit for injuries. For example, a worker can sue someone if they weren’t employed by the same company.
There is also a major exception to the rule. It is called Stute.
In Stute, a general contractor (PBMC), hired a subcontractor (S&S Gutters) to install gutters and downspouts on a condominium construction project. Mr. Stute, an employee of S&S Gutters, slipped off a roof and was injured. PBMC knew that employees of S&S Gutters were working on the roof without any safety devices. The Washington Supreme Court ruled that “a general contractor has a duty to comply with all pertinent safety regulations with respect to every employee on the job site.”
This means, if you are working for a subcontractor on a project. And if you are injured because a safety violation has occurred. Then, you may be able to sue under the Washington Industrial Safety and Health Act of 1973. That act requires all employers to furnish to each of its employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to their employees . “
In the case of our client, we filed a “Stute” lawsuit. The General Contractor confessed to not having any safety meetings, policy or procedures, or equipment for workers of the subcontractor. Ultimately their insurance company was required to pay for the worker’s injuries.
(This trial exhibit was of an on-the-job roof collapse that resulted in multiple orthopedic injuries including a spine injury).
A lot of people don’t know that a firefighter can sue his employer for negligence. A lot of lawyers don’t seem to know this either. The law of Washington is that generally an employee cannot sue their employer for simple negligence. Instead the system is run by Labor & Industries in a no-fault system with limited benefits. But the Legislature made an exception for firefighters and police officers several years back.
Along with Ron Meyers and his staff, we have handled a number of such cases. A recent case involved a hose testing operation. A hose testing device is required when these exercises are performed. But instead, the officer in charge ordered that the testing be done without this protective device. Unfortunately, the hose burst during the test, and our client was hit by the highly pressurized hose. He severely injured his leg and his back. He had incurred medical bills of over $160,000 and lost over $200,000 in wages. He also permanently lost the ability to work as a firefighter, something that had always been his calling.
This unique law does have a twist. Normally if you sue a third party when you are receiving L&I benefits, you then are required to reimburse L&I. In this instance, however, you do not reimburse L&I, but your recovery against your employer is limited to damages in excess of what L&I has paid. It is a twist that can create a number of confusing issues in a trial.
These restaurants that cater to children with play areas and equipment need to make them safe. They encourage these kids to play and climb, but then sometimes leave them exposed.
We had a case against Carl’s Jr. Restaurants. Our 4 year old client was on the play equipment. Mom was sitting nearby. There was a gap between the wall and the netting that allowed entry behind the equipment. Our inquisitive youngster, like most kids, was able to find this gap and used it to gain entry to the area behind the equipment. The youngster then had crawled up the back of one the tubes, lost his grip and fell about 10 feet to the solid floor below. Unlike the floor that is padded inside the equipment, in this area the floor was solid concrete. The boy suffered a significant traumatic brain injury that will impact the rest of his life.
As unbelievable as it seems, store personnel had seem other kids gain access to the back of the equipment on prior occasions, but the manager was concerned about overhead, and refused to have the gap plugged of otherwise covered.
Experts were quick to criticize this design that would leave such a gap. These kids are encouraged to be climbing all over this enticing equipment; these restaurants need to make sure they are safe.
We secured a $2 million settlement for this youngster, and have the money tucked away in a structure to assist him for life. Too bad they didn’t fix this before he had his fall.
Why would an employer have laborers work on a cliff without any fall protection safety? Two years ago, Mr. Perez was tightening barbed wire to a fence post when he fell backwards off a cliff in Eastern Washington. His horrified co-worker watched him land head first, then bounce straight back before “continuing to fall like “a fan” head over heels down a canyon wall. Mr. Perez, father of young children, became an instant quadriplegic.
SKW was contacted by attorney Tim Gresback of Moscow Idaho. Mr. Gresback was the president of the Idaho Trial Lawyers Association and had worked with Karen Koehler before. For the next year and a half we tried to figure out why the companies doing the work created such a dangerous situation.
Under Washington law, there is a principle known as “Stute”. Stute requires that a general contractor maintain a safe work site. Here, the general contractor had no idea how to work on a cliff so it hired a subcontractor. But it took no steps to see if the subcontractor was keeping employees safe. The State of Washington did an investigation that ruled against the general contractor and issued a small fine. But what about Mr. Perez.
Mr. Perez had the right to sue the general contractor. Even though this was a work injury, Mr. Perez’s employer was the subcontractor. Because there is worker’s compensation in Washington, an injured worker cannot sue their employer. But they can sue if someone other than their employer caused their injury. The state of Washington encourages lawsuits against others who injure workers. When lawsuits are successful, the state (us the tax payers) can be paid back the medical expense and lost wage payments of the worker. In a case like Mr. Perez, those payments are in the hundreds of thousands of dollars or more.
SKW through Karen Koehler, Paul Stritmatter and Kevin Coluccio brought a lawsuit on behalf of Mr. Perez and his three dependent children in Eastern District Federal Court, Spokane. For the next year and a half we battled with the general contractor. We even went with all five of our experts to the cliff, though as you can see from the picture, we had proper safety gear. Exactly two years after Mr. Perez’s tragic injury, the case settled for $7 Million which was the policy limits available.
Both the general and subcontractor are still in business and working together. But there is now a difference. Now, their workers attend regular safety meetings, minutes are kept, fall protection gear is provided, and there is a fall protection system in place