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Work Site Death Caused by Unsafe Winch

Multi-million dollar recovery relating to the death of a young man in a construction accident involving a faulty piece of equipment, a portable winch. The worker was using the winch to lift supplies at a construction site at a Pittsburgh work site when part of his clothing became caught in the drum of the winch, and he was drawn in and his chest was gradually constricted to the point that he could no longer breathe. The winch was not equipped with a "dead man" switch that would have deactivated the winch as soon as the worker's hand was no longer on the control lever. When sold as original equipment, the winch was equipped with a "dead man" switch, but the switch was broken and the company that did the repair did not replace it with a similar "dead man" switch.

"Dead man" switches have been around as important product safety features for many years. The purpose of these devices is to disengage or shut off motorized equipment as soon as the operator becomes "separated" from the machine. The most common application of "dead man" technology is the common walk behind power mower that requires the operator to depress a bar underneath the handle in order to keep the cutting blades engaged. As soon as the operator's hands come off that bar, the blades no longer rotate. Similar "dead man" technology is used in some jet skis and snowmobiles that have their engine cut off as soon as the operator's hand is no longer on the throttle. In our case, the winch as originally sold was equipped with a spring-loaded lever that required constant application of the operator's hand in order to engage the motor which powered the equipment. In this case, however, the repair shop replaced the broken deadman switch with one that operated more like a common light switch, i.e. once you threw the switch to the "on" position, you could walk away and the motor would remain running.

Removing or changing safety features which are part of original equipment is a common occurrence in product liability litigation. One of the most frequent of such occurrences is companies which purchase equipment that have safety guards and then, for convenience or speed of work, they remove the guard. In those situations, the product company usually defends the case on the ground that the removal was never anticipated and, therefore, the purchasing company, not the manufacturer, is at fault.

In this construction accident case, the repair shop admitted that they put the wrong switch on the product, but they claimed that the real cause of the accident was the unsafe conduct of the worker's employer or the general contractor who was overseeing the project. In particular, they argued that the machine should not have been used for lifting the supplies; it was set up improperly; they failed to train the worker on how to use it; and, most importantly, the employer sent the equipment out to the job site with the operating handle broken. They also claimed that the young worker himself was contributorily negligent because he got too close to the machine while it was operating.

In product litigation or construction accident litigation, the injured worker has to prove that someone other than his employer is at fault for the accident because a worker is not allowed to sue their own employer. An injured worker is only entitled to receive workmen's compensation from their employer; they cannot sue them for pain and suffering and other damages that are available in a private lawsuit. Therefore, in this case, our strategy was to focus on the conduct of the repair shop and to deflect attention away from the poor conduct of the employer.

This young worker was survived by his wife, but they had no children. In a wrongful death case such as this, the major elements of damages which we claimed were all of the future wages this man would have earned and, more importantly, the loss of "companionship and society" suffered by the wife who lost her husband. In wrongful death cases, this so-called "loss of consortium" claim by the surviving spouse is a significant item of damages. Also, if there are children under the age of 18, they too have significant claims for the loss of "guidance and tutelage" in wrongful death cases.

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