TOV Injury and Safety Blog

Insurer denied right to treat cleaning agents as "pollutant" and avoid liability coverage

Safety King Incorporated provides cleaning services and specializes in cleaning and treating ductwork.  It uses a sanitizing agent, triclosan, which is an antimicrobial found in a variety of uses, including personal hygiene products and cosmetics, although it is also categorized as a pesticide. Safety King purchased liability coverage through Hastings Mutual Insurance Company.  In 2007, a homeowner filed suit against Safety King, arguing that the children in the home suffered injury by mis-use of the sanitizing agent.  Hastings Mutual argued that it did not have to provide coverage to Safety King because its pollution exclusion applied to Safety King's use of a known pesticide.  The trial court agreed and refused to enforce the liability insurance contract.

Employer held accountable, beyond workers compensation, for traumatic amputation

Kristi Fries lost both hands above the wrist when the stamping machine she was operating cycled in response to her loose clothing.  She sued her employer, Mavrick Metal Stamping, arguing that it was responsible beyond workers compensation benefits because it had intentionally caused her injury.  An employer in Michigan is immune even from gross negligence or willful misconduct, if an employee is covered by workers compensation:  the courts have been exceedingly slow to allow employees to recover more than medical and partial wages, no matter how egregious the employer's fault is causing an injury.  The Court of Appeals allowed Fries to recover outside work comp, however, after reciting the facts leading up to her horrible injury.

Employee limited to work comp as exclusive remedy for injuries

Zoran Saveski attempted to sue the Ford Motor Company, alleging that he suffered injury as a direct result of intentional misconduct by a supervisor.  Saveski , a toolmaker, was directed to assist with maintenance on a "Lamb" machine while the plant was shut down.  During maintenance, he was left holding a 100 pound component, causing a blown disc.  He maintained that the supervisor intentionally placed him in a position likely to cause injury.  The Court held that he had not pleaded sufficient facts to document an exception to the workers comp "exclusive remedy" provision applicable to injuries suffered at work.  In order to avoid that provision and sue his employer for negligence, Saveski would have needed to show that the supervisor actually intended his injury; it was not enough to show that an injury was "likely" or "probable".

Trucker can sue for lumber yard employees' negligence

Wilmer Floyd fell 13 feet from the top of a flatbed load of lumber as he was attempting to cover it with a tarp that weighed 150 pounds.  Floyd had been sent to the Insulspan, Inc., lumberyard to pick up the lumber and was attempting to cover it prior to transport.  Despite instructions to the contrary, the Insulspan employees allegedly had left the lumber stacked out in a snowstorm and loaded it on Floyd's flatbed without removing several inches of snow fromt the materials.  Floyd claimed that he slipped on the snow and fell while adjusting the tarp, and sued Insulspan for negligence in failing to cover the lumber or remove the snow prior to loading.  The lower court dismissed Floyd's claim, applying the "open and obvious" exclusion to premises liability to obviate any duty by Insulspan.  The Appellate Court reversed, pointing out that the claim was one for negligence unrelated to Insulspan's  possession of the property and not alleging a hazard on the property.

Farm Bureau punished for "lying in the weeds" on experts

Laura Putnam-Wesener suffered a head injury, apparently, in a motor vehicle collision.  She sued the other driver and she also had to fight with her own insurer, Farm Bureau, to collect PIP benefits.  Ultimately, she settled the claim against the at-fault.  In the meantime, Farm Bureau sought leave of the court to add as expert witnesses the neurologist and neuropsychologist who had examined the injured woman for the at-fault's insurer.  The problem was that Farm Bureau sought to add the experts 18 months late, and the Court had already extended the expert witness deadline once to accommodate Farm Bureau's request to add expert physicians.

Court allows "common work area" injury claim to go to jury

    In Alderman v. JC Development Communities, LLC, the Court of Appeals reversed a trial court dismissal of Alderman's injury claim.  The Defendant was the general contractor on a subdivision project of 200 homesites where Alderman suffered severe electrical burn injuries.  Alderman's injuries occurred when a subcontractor's employee accidentally contacted an overhead power line with a crane.  Alderman's attorneys claimed that he was injured because the general contractor failed to take reasonable steps to supervise or coordinate protections against readily observable dangers that created a high degree of risk to a significant number of workers in a common work area.

Michigan Supreme Court to reconsider Kreiner no fault "serious impairment" standard?

The Associated Press reported on August 21 that the Michigan Supreme Court has agreed to reconsider a case involving the "life-altering" serious impairment interpretation of the no fault law adopted by Justice Clifford Taylor and the so-called Engler Gang of Four.  The latter justices, hand-selected by then-Governor Engler with an eye toward cozying up to the Chamber of Commerce and the insurance industry, adopted a number of lawsuit "reforms," including a re-analysis of the no fault threshold that severely limited when injured car accident victims could sue. 

Court analyzes common work area doctrine in case vs. Northwest Airlines

Elizabeth Banaszak, an apprentice electician, was injured when she fell through a temporary plywood covering and into a mechanical pit at the end of a covered walkway at Metro Airport.  The walkway was being renovated at the time, and Banaszak claimed that NW Airlines had retained control of the construction site, thereby assuming a duty to the employees of sub-contractors to keep the common work area safe.  Following repeated motions by NW, the trial court eventually dismissed Banaszak's claim, holding that she had not established the foundation for a common work area claim against NW.  The Court of Appeals reversed.

Herniated disc suffered while adjusting trailer "dolly legs" is not an "accident"

The Court of Appeals concluded that Marshall Munger's case against Transguard Insurance Company should be dismissed because the injuries he suffered were not caused by an insured "accident."  Munger, an over-the-road truck driver, ruptured a disc while adjusting his trailer's dolly legs.  He claimed benefits under the defendant's insurance policy, arguing that "torquing" the disc between L-4 and S-1 constituted an "accident," but the court ruled that an accident under the policy does not include an injury that results from voluntarily-initiated activity.  The Court held that Munger needed to allege an "event" that was unforeseeable, unexpected and unintended, not merely an injury that met that definition.

Progressive's attempt to avoid coverage is rejected in death case

Progressive wrote insurance on the trucks operated by Rozafa Transport, however when William Neill was killed during the unloading of one of Rozafa's trucks, Progressive denied coverage.  The insurer admitted it had coverage if liability arose out of the "use, ownership or maintenance" of the semi-tractor and trailer, however, it argued that since a forklift was being used in the unloading process, the coverage was eliminated by an exclusion relating to injuries "caused by movement..of an unattached..mechanical device."

Workers compensation "exclusive remedy" provision upheld

In Stallings v. General Motors Corp., the Court of Appeals again upheld the dismissal of an injury action against the injured employee's employer.  As has been explained in previous web log entries, adoption of the workers compensation scheme resulted in partial immunity for employers' negligence.  People hurt on the job are guaranteed certain benefits including medical expenses and a fraction of their normal wage, but cannot secure complete recovery from their employer, even if the employer is guilty of negligence or gross negligence.

Sixth Circuit limits, rejects "contract immunity" defense

Joy Davis sued Venture One Construction after an unhinged door fell on her while she was retrieving a dustpan on her employer's premises.  The door had been temporarily stored outside the construction area by a subcontractor performing remodeling on a Subway restaurant, and Venture One was the general contractor having a duty to maintain safety at the site.  Venture had persuaded the trial court to dismiss Davis' claim by arguing that it owed no duty to Davis, relying upon the Michigan Supreme Court's activist interpretation of "contractual immunity."  The Sixth Circuit overturned the lower court's decision, rejected Venture's claim that it owed plaintiff no duty, and returned the case to the District Court for trial.

General contractor not responsible for wall collapse that caused serious injury

Brian Crumley, a carpenter, suffered very serious injuries on the job when a wall being erected collapsed in a stiff wind.  He sued Multi Building Company, Inc., a lumber supplier, alleging that Multi, the general contractor on site, had been negligent in protecting workers by failing to assure that the wall was "toed in" immediately.  Under Michigan law, a general contractor owes all workers on a site the duty to protect them from known dangers that pose a hazard to multiple employees in a "common work area."

Injury claim dismissed where victim cannot document product failure

Ron Paquin filed suit against Control Chief Corporation after he was injured by a 15-ton mandrel which he was re-locating by crane.  He had no memory of the injury, but claimed that the remote controller malfunctioned, causing the mandrel to strike him.  He offered the evidence of a mechanical engineer who claimed that the remote controller showed evidence of contact welds on the control pads which would have caused an unintended movement of the crane. 

Electrician cannot sue employer for intentionally-caused injury

The Michigan Legislature adopted a statute that defines the rare situations where an employee can sue his employer for injuries suffered at work.  Normally, the employee is limited to the benefits provided by the workers compensation scheme (that is statutory medical  or funeral/burial payments, partial wage loss and very limited attendant care).  The legislature did hold open the potential for an employee to sue his employer for injuries if they are the result of intentional misconduct.  It also defined "intentional" misconduct in a manner that allows a jury to infer the employer's intent.  That statutory definition was at the heart of a disagreement by the Court of Appeals judges who decided the Allard v. Detroit Edison case.

Doctor's opinion that chemical exposure caused loss of smell is admissible

When a Lowe's employee opened the packaging on some pool chemicals, one bottle was punctured, but still placed on a retail shelf.  David Best suffered a chemical burn on his face and hands when he pulled the bottle off the shelf to examine it.  Soon after, he lost his sense of smell completely.  His doctor confirmed that he suffered from "permanent anosmia" and by means of differential diagnosis the doctor excluded other possible causes of the loss.  Lowes persuaded the trial judge to dismiss Best's case, however, by persuading the judge that the doctor's expert opinion was unduly "speculative".

Can AutoOwners dodge responsibility for injuries at Ludington Motel?

The Bronkema family was injured by chlorine gas while staying at the Holiday Inn Express in Ludington.  No one denied the family's injuries, and AutoOwners initially paid more than $10,000.00 in medical expenses incurred by the family.  When the incident turned out to be more significant than anticipated, however, AutoOwners denied responsibility and stopped paying, citing the "pollution" exception in the coverage it wrote for the motel.  The trial judge rejected AutoOwners' pollution argument and awarded the motel and the Bronkemas more than $500,000.00 in damages, fees and costs.

"Common work area" claim dismissed

Brent Curry, a licensed electrician, was injured when he stepped into a gap between the on-site construction temporary trailer and the metal stairs providing access to it.  The stairs had never been affixed to the trailer, but no one knew when it separated sufficiently from the trailer to create a gap wide enough to constitute a hazard to workers.  On that basis, the courts dismissed Curry's injury claim against the contractor.

Worker protection under safety program targeting unsafe employers was illusory

It will come as a surprise to few people to learn that the Bush Administration failed to effectively regulate known unsafe employers in a program intended to target particularly dangerous firms and industries.  A recent Labor Department Report found that the protections to be offered by the program were illusory, due to a combination of mismanagement and inadequate resources.

Union workers' anti-discrimination rights can be bargained away

In a reversal of public policy, the U.S. Supreme Court decided last week that a union majority, or its executive council, can bargain away individual rights relating to discrimination.  Historically, the Supreme Court had rejected this kind of argument, noting that a majority within the union may be willing to trade individual rights--or allow discrimination against an insular minority--if it can secure benefits for the broader membership.  In last week's 5-4 decision, written by Justice Thomas, the majority overturned the 1974 Alexander v. Gardner-Denver Company decision and allowed the union to bargain away federal age-discrimination protections.  The Union had acquiesced in employer demands that age discrimination claims be resolved only through arbitration and that normal civil procedure rights (including the right to a jury trial) be relinquished.

Employee's injury case sent back for a new trial

The Court of Appeals reversed the Wayne County Circuit Court judge's decision that summarily disposed of an injured worker's claim against a company that leased manufacturing equipment to his employer.  The worker was badly hurt when a slitter allegedly malfunctioned.  His attorneys claimed that his injury was caused by the breach of a contract obligating the defendant to train employees in the use of the machine and to inspect it for defects and dangerous conditions.  The Court of Appeals unanimously agreed.

Chemical supplier not liable for injuries suffered by GM workers

In an appeal from Genessee County, the Court of Appeals addressed several issues arising out of allegedly negligent exposure to a hazardous chemical.  The case is Bearup, et al. v. General Motors Corporation, et al. The Plaintiffs in the case were all former employees of GM (Isn't that everyone who lives in Flint, at this point?) who suffered serious lung injuries, allegedly as a result of exposure to a draw compound used in machining operations. The claims were defended on the basis that the statute of limitations had run (before the injuries were diagnosed, even), and on the basis that the manufacturer, Quaker Chemical, owed no duty to warn the employees of the potential hazard because they were selling the compound to a "sophisticated user".    The Court ultimately accepted these defenses almost in their entirety.  

Workers with documented chemical exposure may still be denied benefits for disability

The New York Times recently published a column addressing the gap between science, medicine and the law.  It identified employees such as Ed Abney, who can identify a valid statistical, scientific basis for their medical problem, but who cannot meet tort "reform" standards that require proof of causation for a particular individual.  This issue was less of a problem before product liability "reform" efforts lead to a series of decisions in some jurisdictions (including Michigan) holding that injury victims must establish a higher threshold of proof. 

McDonalds not responsible when employee beats disabled child

The Court of Appeals recently held that a local McDonalds owed no responsibility to the mentally challenged victim-customer who was beaten by an employee.  The victim was allegedly attacked verbally by the employee.  He then reported the incident, including the employee's threat to "kick his ass", to the manager on duty.  The manager left the employee at his work station after the employee claimed to have calmed down, however, moments later the employee attacked the customer, he had to be "pulled off" the victim and police had to be called. 

US Airlines sue to avoid FAA crew rest requirements

A number of U.S. airlines, including American, Continental, and United, have filed suit in Chicago to block new FAA rules that address rest requirements for crews having completed non-stop flights in excess of 16 hours.  The airlines claim that the FAA cannot prove that the new rules will enhance safety.

Federal Court limits punitive damages to 1:1 ratio; "bad faith" award against insurer reduced

Many states allow punitive damages in order to punish inappropriate behavior and in an attempt to enhance safety.  Michigan allows punitive damages in very few isolated situations, with little real public policy consideration.  For example, Michigan allows "treble damages" for wrongful tree cutting and allows 12 percent punitive interest when some insurance payments are wrongfully delayed.  Other states have a more comprehensive approach to punitive damages and the U.S. Supreme Court has recently indicated a willingness to strike down punitive damage claims.  The Alaskan oil spill, for example, resulted in a punitive damage award against Exxon that was ultimately reduced to a few weeks of oil profits after 19 years of litigation.

"Contract immunity" defense rejected

In Maday v. Harold Miller Real Estate, the Defendant claimed it should not have to pay the verdict against it because its negligence arose out of a contractual relationship with the Plaintiff.  The Court of Appeals rejected this claim as an over-statement of the contractual immunity theory created by the Engler Majority of the Michigan Supreme Court.  Under the latter rationale, a party who contracts to act is relieved of any responsibility outside the contract--even the responsibility to act "reasonably".  In rejecting the Defendant's argument, the Court noted that when the Engler majority created the suggestion that a contract duty eliminates any duty arising out of negligence, it expressly limited that ruling to claims made by third-parties to the contract.  The Maday court was not willing to expand  what commentators have called "contractual immunity."

The underlying Supreme Court case, Fultz v. Union-Commerce Association, has been roundly criticized by commentators, victims' attorneys, and insurance attorneys alike, as contrary to sound reasoning and sound public policy. Making a promise to one other person to perform a contractual undertaking should not relieve any actor of the duty to act reasonably:  assuming an "extra" duty by contract should not relieve people of their inherent duty to comply with the standard of reasonable care. 

Passenger electrocuted when dump box strikes overhead wire is eligible for no fault benefits

Irma Conn accompanied her husband when he used his dump truck to deliver beets for a farmer.  Unfortunately, when Conn raised the dump box to unload the beets, it contacted an overhead electrical wire and energized the box.  Irma was fatally electrocuted as she attempted to exit the truck cab.  The two insurers involved disputed whether Irma was entitled to no fault PIP benefits. 

Court upholds verdict against farmer in death caused by falling bale of straw.

Nicholas Jimkoski purchased straw from Peter Shupe.  Unfortunately, when Shupe attempted to load the 700 pound bales on Jimkoski's vehicle, he could not remove one bale that was stacked 11 feet above ground and frozen to the stack.  Shupe left that bale where it was and loaded Jimkoski's truck with bales that were stored partially beneath it, leaving the bale balanced precariously above Jimkoski's truck.  As one might expect, the bale ultimately fell; when it did, it narrowly missed Shupe, struck Jimkoski and killed him.  A jury concluded that Shupe was negligent, that Jimkoski was also negligent (and reduced his verdict by his share of fault), and awarded Jimkoski's family damages for Shupe's percentage of fault in causing the death.  Shupe's insurer appealed, claiming that Shupe could not be sued because the risk of injury to Jimkoski was "open and obvious".

The latest in insurance "loophole" arguments

A superficial search of this weblog will provide numerous examples of insurers attempting to avoid obligations they have collected premiums to cover--through nonsensical or perverse construction of the insurance policy contract.  The industry hit a new low in Texas this fall, however, when Great American Insurance Company filed an argument claiming that it was not responsible to provide "excess" coverage for several deaths that resulted from an office building fire.  The insurer is claiming that although its policy including fire liability coverage, it owes no coverage for the seven deaths that occurred in a 2007 fire because the victims all died of smoke inhalation.  The insurer is arguing that it owes no coverage for smoke inhalation deaths because it included an exclusion in the policy for damages caused by "pollution".   

Michigan Supreme Court creates "contract immunity"

In the Fultz v. Union-Commerce Associates' and Banaszak v. Northwest Airlines decisions, the Engler majority of the Michigan Supreme Court has turned existing law on its head.  In these holdings, the four Justices have allowed a contract between two parties to extinguish the rights of non-contracting parties, in essence creating "contract immunity" for the parties to the contract.

Man crushed by machinery cannot sue company that loaded it on truck, but defendant driver can claim their fault as defense?

Two members of the Court of Appeals issued a disturbing opinion arising out of the Macomb County Neill v. Steel Master Transfer case.  Neill's husband was crushed when an improperly-loaded 800 pound piece of machinery fell from a tractor-trailer and crushed him.   A Steel Master employee had loaded the machinery on the trailer, and the  Defendant driver hired by Rozafa Transort had tied it down.  Under federal rules adopted by the Michigan courts, a commercial transport driver has "primary responsibility" for the safe loading of cargo, and on this basis, the Court held that Steel Master owed no duty to Neill and should be dismissed from the case.

Another injustice by Republican activists

In 2007, the activist conservative majority on Michigan's Supreme Court held that the family of a rape/murder victim could not avail itself of the "discovery" rule to bring an action against the parties at fault, even though the perpetrator was not identified until long after the statute of limitations had run.  In most jurisdictions, the victim has additional time to act after he or she "reasonably should have discovered" the identity of the wrongdoer.  The four Republican extremists on Michigan's Court refused to apply the discovery rule here, however, even though the family had no idea, during the limitation period, who was responsible for the crime.

Judge Henry Saad, who never saw an insurance defense that he didn't like, and a panel of Court of Appeals' judges relied upon the rape/murder case in throwing out a case against Ford Motor Company in Beaulier v. Ford Motor.  Mr. Beaulier was attempting to hold Ford Motor responsible for contaminating his property with methane gas and piles of industrial waste.  Many jurists argue that Ford's conduct in a case such as this constitutes a "continuing" trespass, which the landowner can act upon at any time--since the polluting trespass is continuing.   We think that whether one addresses the issue as one of fairness or one of public policy, the "continuing tort" theory is more appropriate.  It is ironic that jurists appointed by a political party that eschews litigation and a "rush to the courthouse" continues to interpret the law in an activist manner that denies any "day in court" to people who have not sued on the earliest possible date. [See the earlier blog entries addressing the restrictive interpretation this court has applied, for example requiring No fault PIP actions within one year, rather than within one year of denial, as was the law for 19 years.]

The dangers of texting and multi-tasking

The recent Los Angeles commuter train tragedy confirms again the danger of multi-tasking and texting.  Apparently the railroad employee responsible for putting two trains on a collision course over a single track was texting when he should have recognized the danger and the warning of impending catastrophe. 

Fatalities in the workplace

Recent figures released by the Occupational Safety and Health Administration raised some controversy, but also shed light on developments in the American economy.  The number of workplace fatalities was down significantly when compared with figures from 1992.  Union members pointed out that most of the recent reduction occurred in transportation industries which are not governed by OSHA.  We presume the numbers are also a reflection of more dangerous manufacturing activities moving overseas in the past 15 years.  The four occupations with the highest fatality rates in 2007 were fishing, logging, aircraft crews, and structural iron and steel workers.  Fatal falls rose 39 percent from 1992, while workplace homicides increased by 13 percent in the past year,  and deaths among police officers rose by 30 percent from 2006 to 2007.

Labor Department fails to protect workers

No one who hasn't head their head in the sand for 8 years will be surprised to learn that another Bush Republican government appointee has sacrificed her duty to the people in her charge, for the benefit of large political donors.  This time it is the Labor Department and Elaine Chao, and the accuser is the non-partisan Governmental Accountability Office.

Seller liabilty for implied warranty

The Sixth Circuit recently had occasion to interpret another facet of Michigan's tort "reform" legislation in Croskey v. BMW of North America.   The Court concluded that the legislature eliminated a non-manufacturing seller's liability for implied warranty of fitness in the personal injury context, making a seller liable only for its own negligence.

Engler Majority re-writes workers comp this week

That the insurance-friendly Engler-appointed majority of Michigan's Supreme Court would have re-written the workers compensation statute to favor insurers will come as no surprise to Michigan residents who pay attention.  This week, the Court changed the landmark view of how the workers comp rules are interpreted:  the four arch-conservative Justices re-wrote the rules so that a disabled worker must also prove that he could find no other jobs. 

Common work area doctrine applied

When Kevin Hamm suffered serious injury while helping to renovate the IM building at the University of Michigan, he attempted to hold the general contractor liable.

Even among the insurance activists, there are some limits on the abuse of injured employees: duty of one sub-contractor to another

When Rick Beavers showed up to investigate an abandoned property for asbestos abatement prior to demolition, he was reluctant to tour the Tanner building because of its decrepit and unsafe condition.  He was encouraged by the Defendants' supervisory employees to make the tour with them, without a flashlight and under their guidance.  Ultimately, they directed his attention to a location that caused him to fall from a loading dock in the dark, suffering severe injuries.

Its a crime only if the victim dies?

University of Michigan professor David Uhlmann authored a recent editorial describing his time as a Federal Prosecutor and noting the flaw in worker safety legislation:  a criminally culpable employer can be charged with a criminal offense only if an employee dies.  Causing death is a misdemeanor; causing permanent serious harm is not punishable.

Suing the employer for injuries

Yet another attempt to sue an employer for an extremely unsafe work setting failed with application of the "exclusive remedy" provision of workers compensation.

Worker safety in mines

  The Bush spokesman for the federal Mine Safety and Health Administration confirmed on January 28 that the Agency had failed to issue penalties for hundreds of citations issued since the year 2000. He implied that the problem had occurred in the Clinton Administration, as well, but could not provide documentation.  The preliminary data confirmed by the spokesman documented 4000 unsafe citations issued by the MSHA between January of 2000 and July of 2006, for which no penalty had been assessed. 

  The MHSA "discovered" the problem when someone attempted to confirm whether a penalty had been assessed against a negligent mine owner after a miner bled to death in a December 2005 incident.  The miner had not received first aid after his injury:  the MHSA spokesman acknowledged that the company had never been fined, but claimed that it was fined the maximum penalty of $60,000.00 on the 18th of January, 2007, after the issue was brought to the Agency's attention.

Safety concerns with regulating the chemical industry

        The Department of Homeland Security has just released its rules on reporting stockpiling of toxic chemicals, and true to form, the Bush administration has imitated the fox in the henhouse.  The new rules allow, for example, unregulated storage of up to 2500 pounds of chlorine:  one of the most deadly chemicals in regular use.  A company does not even have to report the theft of 450 pounds of chlorine, even though it could be more deadly than  ten times that quantity of high explosive.    Chlorine has been used against civilians by insurgents in Iraq.  [Think of the disaster in Bhopal, for example, and then imagine if it was designed to achieve maximum mortality by the architects of 9/11.]  The Department had proposed more stringent rules in April, however, they have been watered-down since by the Administration's corporate allies who provide what cerebral power is exercised by this Administration.  A Greenpeace spokesman attributed the tepid and unsafe rules to the usual pattern of former industry executives now serving in the federal government as regulators----who refuse to regulate.

Worker safety at BP

  The New York Times today reported that British Petroleum is expected to settle accusations of criminal responsibility for the explosion and fire of 1990 that killed 15 workers and injured 80 more.  Government officials report that they will continue to investigate the responsibility of BP executives.  BP reported 4.4 billion dolars in profit for the most recent quarter, beating analyst expectations and proving that crime can pay if lives are cheap and we don't include environmental degradation in the equation.  Perhaps that equation will be re-balanced eventually, as BP faces more than 1,000 civil lawsuits for injuries and property damage, and the company has already set aside nearly 2 billion dollars to satisfy the claims. 

        Earlier in the year, a federal safety panel attributed the explosion to safety deficiencies "at all levels" of the plant  and found that the BP executives had ignored warning signs of impending disaster.  BP has pledged to spend a billion dollars to remedy safety problems at the Texas City plant.  To date, no one has reported that the Bush Administration intends to introduce legislation to protect American refineries from frivolous lawsuits, but that step wouldn't surprise us.  That seems to be the next step whenever a negligent contributor to the incumbents finds itself facing legal exposure of a level that makes it uncomfortable. 

        Next thing you know, we'll find out that BP actually earned higher profits after the output of this refinery was cut in half by the explosion:  because the huge reduction in supply increased prices in the industry and paying workers comp to the maimed and widowed was cheaper than paying to actually produce oil.

       

Problems with food safety in the U.S.

  The McClatchy-Tribune Company reported on October 14 that  while our nation's top food safety officials were in Miama setting the "course for the next 100 years of food safety", the handful of boots left on the ground at the USDA were initiating a recall of 21.7 million pounds of hamburger.  While our national government is spending billions on the "war on terror" and in particular making enemies by attempting to police a civil war in Iraq, it is continuously stripping every other element of the Federal government of the workers needed to protect our citizens.

        The "starve the beasters" have used a combination of tax cuts and budget cuts to strip the number of inspectors in the USDA (and many other branches of government, including the Consumer Product Safety Commission and the Occupational Safety and Health Administration), resulting in glaring problems  with safety in our food supply.  This recent embarrassment started in September when consumers in New York and Florida fell ill from E.Coli exposure.  By the time 32 people had been poisoned, inspectors had finally traced the problem to New Jersey-based Topps Meat Company.  A full 18 additional days passed, however, before Topps was forced to recall a FULL YEAR'S PRODUCTION:  apparently the problem that lead to the E.Coli poisoning had existed for that many months without being identified.   Inspectors who insisted on anonymity to avoid retaliation told the paper that managers are doubling and tripling their workload as a result of downsizing that has left the agency under-staffed [and over-managed in Miami, apparently].

When government does not regulate

       An RPI Coating company spokesman told the Associated Press that it was "devastated" over the loss of five of its employees who were killed in a deadly fire in a hydroelectric plant in Georgetown, Colorado.  "They were very experienced guys.  They were some of our best."  The fire has been traced to a heated device in which the workers were mixing an epoxy-based sealant.  It turns out that RPI has been issued numerous safety violations by the California Occupational Safety and Health Administration and the Denver-area Federal OSHA office.  Since 1986, the Denver office had issued 35 safety violations against the company ("more than most companies"), and an OSHA spokesman was quoted in the New York Times to the effect that "They have a significant history with OSHA, and these are serious violations".  One employee of the company was killed while working on the Oakland Bay Bridge in 2002.  The dead employees were 18 year-old Anthony Aguirre; Donald Dejaynes, 43; Gary Foster, 48; Dupree Hold, 37; and James St. Peters, 52.  It has been our experience that when a tragedy like this occurs, it can frequently be traced to a culture of corner-cutting and a lack of safety-consciousness that is ingrained in some companies.  Individual workers who might object to safety compromises end up biting their tongue and attempting to ignore potential risks, in order to preserve their jobs and their sanity.

The dangers associated with lead

     While the human body needs to consume tiny amounts of many non-organic minerals, lead is not one.  So far as we know, lead is of no value to the human body and consumption of lead has devastating consequences for humans--particularly during the early stages of brain development, when it has been widely documented to interfere with neurological development.  Furthermore, the neurological impact is permanent and irreversible.

     Lead is the heaviest "stable" element, however, it does break down when it interacts with certain other elements--particularly sulfur.  Because it is resistant to corrosion and discoloration, it has historically been used in many domestic products including kitchen utensils and water pipes.  More recently it has been used to improve the adhesive properties of paint.  Although its use was banned in interior paints in 1971, lead is still used in the United States to bind exterior paints.  Obviously, in China it is widely used in inferior products because it is cheaper than many other stable minerals.

More limitations on premises liability

      The Michigan Supreme Court recently decided that a landowner conducting dangerous activity on his property should owe no duty to persons injured off the premises.  There is no Michigan statute which addresses this question, so the Court was required to analyze and address the issue as a matter of judge-made "common law".  The case involved the death of the wife of a worker who routinely laundered the worker's clothes and was exposed to asbestos fibers as a result.

         The Defendant's property was contaminated by asbestos.  The Plaintiff died after prolonged illness resulting from exposure to her husband's work clothing.  She laundered the clothing for him on a regular basis and no one disputed that her death was a result of contact with asbestos carried home from Defendant's property on her husband's clothing.

         The federal government has previously concluded, after substantial study, that no environmental exposure is more dangerous than asbestos.  It is extremely toxic with clearly demonstrated and substantial detrimental health effects.   Exxon Mobil knew of the "take-home" risk of asbestos as long ago as 1937, however, the majority of our Supreme Court ignored this confirmation of known risk.  Further, by government regulation a property owner is now required to manage and control the "take-home" risk of asbestos, as the health risk to off-site persons such as this housewife have been very clearly documented in prior years.

        As long ago as 1916, employers  were urged by safety publications to launder contaminated work clothing on site.  The Occupational Health and Safety Administration began regulating "take-home" clothing in 1972.  In the 1960s, admonitions about the safety of laundering asbestos-exposed clothing were documented, yet the "industrial apologists" on our Supreme Court not only refused to impose a legal duty; they also engaged in an intellectually superficial examination of the "foreseeability" of injury without a full hearing on the merits.  In other words, they gave lip service to a weighing of social cost and benefit without allowing the issue of negligence to be fully addressed.  After engaging in what it called a "weighing of competing social policy considerations" (i.e., the relative advantages and costs of imposing responsibility) the four right-wing jurists who speak for the Chamber of Commerce on the Michigan Supreme Court concluded that a property owner should owe no duty to a person injured when not on the premises, regardless of any issue of negligence.   One of the three dissenting Justices noted that the majority showed an unseemly interest in the corporate cost of regulating asbestos without giving any consideration to the health cost for individuals.  As Justice Kelly wrote, "it is a sad day" for our citizens when our Supreme Court responds to one of the greatest and most expensive environmental health catastrophes of our time by eliminating corporate responsibility and leaving individual victims to bear the associated cost.  It is also stupid public policy to impose that cost on the workers and their family who cannot control the risk, rather than placing the duty where it belongs:  on the entities with the knowledge, resources, authority and legal duty to impose appropriate controls.

      Oddly, Justice Young provided the deciding fourth vote in the case, despite his firmly-stated conviction that the Court lacked the constitutional basis to even decide the case.  We can only suppose that he was more interested in the (no liability) result than he was interested in the underlying legal analysis.

      Sadly, these Justices are so jaundiced and so deeply biased in favor of their corporate supporters that they simply cannot or will not recognize the costs borne by an injury victim.  They can read a spreadsheet pretty well (especially if it relates to corporate profits or campaign advertising expenditures); they don't do as well with the New Testament.