A West Virginia construction company recently settled a wrongful death case two months after losing its motion for summary judgment. Century Steel Erectors has agreed to pay $1 million to the family of Kelly Nestor, who died in April, 2009 from injuries he received from a work accident occurring five weeks earlier.
According to a report in The West Virginia Record, the victim, an iron worker, was erecting structural steel members for a new building in Preston County near Kingwood when he fell approximately 18 feet from a steel I-beam to the ground, fracturing his spine and sternum. The lawsuit was said Kelly Nestor died as a result of unsafe working conditions known to Century Steel.
Records show two months before the incident, OSHA inspectors had driven past another Century Steel work site and videotaped ironworkers working without fall protection. After being cited, the company issued a memorandum, reminding all employees about fall protection.
But in denying the company’s summary judgment request, the trial judge found that at a subsequent safety meeting where the victim was in attendance, the foremen told employees “that he was comfortable if the men moved about the beams using a method known as ‘cooning,’ in which a worker straddles a beam, placing a foot on the bottom flanges of either side of the beam.” Crooning is not an acceptable safety practice to either OSHA or Century Steel.
Kelly Nestor was wearing a personal safety harness at the time of his accident, but it was not secured.
The Virginia Injury Lawyer Perspective:
Century Steel claimed that it was not liable because the plaintiff did not prove that the had actual knowledge of the existence of a specific unsafe working condition and of the high degree of risk associated with it, or that it intentionally exposed an employee to the working condition.
They argued that that even if it knew Nestor was working without fall protection, it did not know that presented a high degree of risk because he was an experienced ironworker who had never complained about safety standards.
The judge’s reply: “This argument belies both common sense and Century Steel’s own statements recognizing the risk contained in its internal memorandum circulated two weeks prior to Mr. Nestor’s fall. ” We are glad to see the trial judge did not accept that argument and rejected the company’s summary judgment reques
Kingwood, West Virginia