Two Novel Legal Theories Work!

A large paper mill in South Georgia was sold to a Mexican corporation. At the time of the sale, much of the paper mill’s equipment was fifty years old and did not contain modern safety features, such as electronic eyes, trip rods, barrier guards or gates, or other similar equipment which keeps employees’ hands and legs out of moving machinery. Shortly after the sale, both arms of a black male, from the elbows down, were crushed in a machine. His arms were saved but today they have almost no function. Despite extensive surgery to save the limbs, to build in cosmetic muscles, to treat the skin like third degree burns with skin grafts, and to release the tendons in the fingers to try to regain some movement, our client has almost no use of his arms and has no ability to sweat or feel sensation in his skin below the elbows.

A number of months later, a white male in his twenties was caught in another piece of equipment at the same plant. Unfortunately, our client’s arms were amputated just below the elbows. Mr. S now has myoelectric prostheses (artificial arms below the elbows which contain some electronic movement).

The law provides that an employed individual gets worker’s compensation benefits, which consist of payment of medical bills and a portion of lost wages but no money for pain and suffering from their employer. In exchange for getting these meager benefits, the employee is not allowed to sue his employer, even if the accident was his employer’s fault! Thus, several law firms turned down representation of these individuals because these individuals could not sue their current employer. The firms were not aware of any legal theory in which the former employer or anyone else could be sued for money beyond that which was paid by the worker’s compensation system.

Wilbur Owens researched the issues and found that there were a pair of theories that could potentially be used for a recovery but these theories had never been used in Georgia. Some other states had addressed these same issues. Some of the states had ruled that the theories were valid but others had rejected the theories. Thus, we decided to try the theories, understanding that if we lost, we would lose at least $50,000 of expenses in each case and receive no attorney’s fees.

The former owner of the plant was sued under the theory that the plant was sold in a defective condition to the new employer. Thus, it was argued that the prior employer and owner of the plant was liable for injuries caused by the defective condition of the plant up through the time that the new employer knew, or should have known, of the defective conditions plus the time it would take to remedy same. Georgia had never addressed the liability of a former owner of a plant for selling a plant which contained unsafe equipment. In other words, shouldn’t the owner of equipment only sell it if it is safe, or at least be required to tell the purchaser of the safety hazards before someone operated the equipment and was injured?

This required suing the former employer of our clients. Georgia law had never addressed the issue of whether a former employer could be sued or whether that claim would be barred by worker’s compensation. We took the position that, once the employment relationship ended, an individual could sue their former employer. We additionally argued that the theory of liability was based upon the sale of the plant and was not based upon the employer/employee relationship. Defendant in both cases took the position that Georgia does not recognize any liability for the sale of a plant in a defective condition and that an individual could not sue their former employer where the defects in the plant occurred during the time of that employment relationship. Thus, Defendant argued that worker’s compensation bars suits against the former employer.

The Defendant filed summary judgment on these grounds in both cases, as well as on an additional ground in one of the cases. In a 37 page ruling by a federal district judge, the court held that an individual can sue based upon an obligation of a prior owner of a plant to sell his facility in a safe condition, or, if not safe, to warn the new owner and employees of the hazards. That former owner would then be liable for injuries caused by those defective conditions up through the period of time that the new owner knew, or should have known, of the hazardous conditions plus a reasonable period of time to remedy same.

Our firm hired former Occupational Safety and Health Administrative inspectors to testify about inspecting the plant, what the defects were throughout the plant, and how long it should have taken for the new owner to discover and repair the particular defects which injured our clients. We also used medical doctors to prove past and future medical care and a life care planner to calculate specific future medical needs and the cost of same, as well as modifications for cars, homes, vehicles, etc. We hired an economist to project future medical inflation to coincide with the dates that the future medical care would be needed and then reduced these figures to a present value by using a discount figure. Additionally, we hired a human factors expert to testify concerning the lack of understanding that these individuals had of these dangers and why that resulted in their injury. Thus, it is necessary to have safety features because individuals cannot keep their hands out of dangerous machinery where they are near it on thousands of occasions. Eventually, one will stumble or not be quick enough and will get caught in unguarded moving machinery.

Eventually both cases settled for millions of dollars, one of them a few days before the start of trial.

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