Most of the time, the only recourse for survivors of a family member who dies because of a job are workers’ compensation benefits. However, when an employer shows gross negligence and an employee dies, the rules are different. In Garay v. GR Birdwell, the decedent’s surviving spouse and a representative of the decedent’s minor child sued the decedent’s employer for wrongful death after the decedent died while operating a trench roller. The accident happened while the decedent was working on his employer’s behalf at a construction site.
The employer was completing construction of a concrete wall, and the decedent operated a trench compactor on the employer’s behalf. He had worked for the employer for five years without any accidents. Usually, workers used a remote control with the trench roller, but according to another employee, the decedent said the remote control wasn’t working, even though he was able to use it earlier in the day. Therefore, the decedent manually operated the roller. Another employee had manually operated it the same way many times before.
While operating the roller, the decedent stood at a pinch point between the roller and the wall. The roller pinned him there. His coworkers tried to get him out, but he already had suffered serious injuries and died there.
His wife sued the employer, who had workers’ compensation insurance, for gross negligence. She argued that three safety features of the roller (the remote, the rear push-stop bar, and the emergency stop button) had failed on the accident date. The spouse argued that the employer knew the roller wasn’t safe to use but failed to repair it and required the decedent to keep operating an unsafe piece of equipment. The decedent’s son asserted the same theory through a representative.
The employer moved for summary judgment on both survivors’ claims of gross negligence. It argued that there wasn’t any evidence to show its actions created an extreme degree of risk of serious injuries or that it was aware of a risk of serious injury but acted with conscious indifference to her rights, safety, or welfare or that its vice principal had ratified gross negligence. The decedent was responsible for reporting any safety problems before starting work with it. The employer also showed it had warned employees not to stand between the equipment and a fixed object like the concrete wall in this case.
A coworker had seen the decedent using the remote but in the afternoon saw him operating the equipment manually. The man testified he didn’t go to a meeting where the company’s personnel discussed a safe way to operate the trench roller. However, he also testified that the employer had a daily safety meeting and that equipment operators were supposed to inspect their equipment and report issues. Other employees also testified about the policy and practices of the company with regard to safety issues and the trench roller.
The trial court granted the no-evidence summary judgment motion. The child did not file a new motion to set aside this judgment. The survivors of the decedent appealed. Among other things, the survivors argued that the trial court had erred in granting summary judgment because specific acts and omissions by the employer added up to gross negligence.
When an employer in Texas subscribes to workers’ compensation insurance, a decedent’s survivors must show the employer was “grossly negligent” in causing the decedent’s death to prevail in a wrongful death lawsuit. Otherwise, their recovery is restricted to workers’ compensation benefits. In Texas, gross negligence is an act or omission that, when viewed objectively from the point in time when the accident happened, involves extreme risk and when the actor has subjective awareness of the risk but proceeds with conscious indifference. Unlike negligence, there must be both objective and subjective considerations. The evidence must be “clear and convincing.”
The survivors in this case argued that the employer had a non-delegable duty to provide a safe workplace, equipment, and adequate training to employees, and the employer breached this duty. The acts or omissions that the survivors considered gross negligence were the employer’s failure to train the decedent, the trench roller’s malfunctioning remote control, the trench roller’s missing safety bar, the broken emergency button, and the employer’s failure to use maintenance programs and provide safety training. The court did not find these rose to the required level of gross negligence.
If a loved one is killed on the job, and you believe the employer showed gross negligence, it’s important to retain attorneys with experience in proving liability. The experienced San Antonio wrongful death attorneys at Carabin Shaw may be able to help. Call our office for more information at 1-800-862-1260.
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