On December 14, 1983, John Ausland and Gordon Sweringen were
steadying a steel sheet, being moved by a crane when the crane's
hoisting block came in contact with an uninsulated 7,200 volt power
line, fatally electrocuting both men.
Through discovery plaintiffs identified five potential
defendants: Atlantic Electric, the utility company that owned and
maintained the uninsulated power lines involved in the accident;
Bucyrus-Erie Company, the manufacturer of the crane; M&H
Equipment and Supply, Inc., who leased the crane to plaintiffs'
employer; and the New Jersey Department of Transportation, the
governmental entity that planned and supervised the renovation
project.
Discovery was intensive, comprehensive and complex. In excess of
fifty depositions were taken. Thirteen sets of Interrogatories,
eleven sets of Requests for Production of Documents and eight sets
of Request for Admissions were filed against Bucyrus-Erie, the
crane manufacturer alone. Thirteen sets of Interrogatories, six
sets of Request for Production and four sets of Requests for
Admissions were served on Atlantic Electric, the utility
company.
Twelve employees of Atlantic Electric were deposed including
their Vice President, manager of the operating area, district
engineer, trouble man, lineman, and representatives of their
engineering, meter reading and billing departments. The chief
engineer of Bucyrus-Erie, their product safety manager and two
consultants that they had retained to evaluate crane safety devices
were deposed. Numerous employees of the remaining defendants were
also deposed.
Theories and Defenses: Plaintiffs
contended that Atlantic Electric was grossly negligent in failing
to take any precautionary action whatsoever after having been
advised of the pendency of the project by the New Jersey Department
of Transportation. Discovery revealed that Atlantic Electric had
knowledge of at least ten prior injuries and deaths occurring when
cranes contacted their power lines at various construction sites.
Plaintiffs were further able to prove that Atlantic Electric had
specific knowledge of the existence of the construction project and
knew or should have known that cranes would be utilized in
dangerously close proximity to their power lines. Plaintiffs also
attacked Atlantic Electric's general safety program, contending
that Atlantic Electric should have launched a comprehensive safety
program to prevent these types of accidents with mailings to
general contractors and other construction entities along with
seminars for operating engineers. These safety precautions did not
take place until after this fatal accident, the fourth and fifth
crane electrocution fatalities involving Atlantic Electric's power
lines in 1983 alone.
Plaintiffs contended that Bucyrus-Erie was grossly negligent and
marketed an unsafe, defective, and unreasonably dangerous product
when they supplied the accident crane without an insulated safety
link and lacking any warning whatsoever concerning the hazard of
power line electrocution. Discovery showed that Bucyrus-Erie was
aware of at least forty prior injuries or deaths caused by contact
between their cranes and overhead power lines.
Plaintiffs contended that Bucyrus-Erie, and the entire industry,
should have supplied the crane with an insulated safety link. The
insulated safety link is a device which is attached to the hook of
the crane and acts as an insulator, preventing electricity from
flowing down the hoisting cable and s into the hook, the load, and
ultimately ground men such as Mr. Ausland and Mr. Sweringen.
Bucyrus-Erie had declined to put these devices on its cranes after
analyzing insulated link tests that were performed by two
consultants. The tests showed that the insulated link worked the
vast majority of the time. Bucyrus-Erie declined to put on a device
that was not 100% effective, contending that the use of a safety
device that was not 100% effective would lead workers to develop a
false sense of security which would result in an increase rather
than a reduction in accidents and injuries.
Plaintiffs retained an electrical engineer who performed
extensive testing of the insulated link while covered with various
contaminants to which it would be exposed to in the real world.
Plaintiffs also retained a human factors engineer who analyzed the
causes of such accidents, the voltage at which these accidents
occur and the position of the victim. The human factors expert was
also prepared to vigorously contest the validity of defendant's
false sense of security thesis. In addition, he would have rendered
testimony that the defendants were grossly negligent in failing to
affix warnings of electrical hazards especially when they supplied
such warning on cranes which were previously sold to the
military.
Plaintiffs worked for M&L Construction Company, the general
contractor at the site. Plaintiffs' counsel was able to uncover
evidence that M&L Construction Company had silently and
secretly subletted the supervision and planning of the day to day
operations to Apple Constructors, Inc. Plaintiffs were able, to
establish that Apple Constructors was negligent in failing to have
the power lines which ran directly above the contractor's yard
relocated, deenergized or insulated. In addition, plaintiffs'
expert maintained that Apple Constructors was negligent in locating
the storage, where plaintiffs' decedents were working at the time
of their deaths, directly beneath and adjacent to uninsulated power
lines.
The New Jersey Department of Transportation has limited
immunity. They are only responsible for their failure to enforce
non-discretionary functions. Plaintiffs' expert maintained that the
New Jersey Department of Transportation failed to enforce a
specification in the contract calling for a pre-construction
utility conference and that it also failed to require the general
contractor to submit a detailed construction plan to the utility
company, said requirement being part of the technical
specifications prepared by the New Jersey Department of
Transportation for this particular project.
The defendants all blamed the accident on Plaintiffs' employer,
M&L Construction Company. In addition, they contended that the
Plaintiffs were contributorily negligent, particularly decedent
John Ausland. The crane operator, the only eyewitness to the
accident, testified that Mr. Ausland had signaled him to swing
towards the wires even after the crane operator had pointed out
their location to him. In addition, the crane operator contended
that he had stopped the crane when it was approximately one foot
from the power lines and that Mr. Ausland had pushed the load
causing the block of the crane to contact the power lines.
Plaintiffs' expert disputed this and prepared detailing, drawings
showing that this was physically impossible.
Both decedents were apprentices at the time of their death and
had earned $9,000 and $13,000 respectively in the last full year
before their deaths. Pain and suffering was contested. Defendants
argued that there was no conscious pain and suffering while
plaintiffs were prepared to offer proof that both decedents were
moaning and moving for approximately a minute after the
accident.
The Result: After two weeks of
intensive pre-trial rulings on depositions and videotapes, the
parties settled for $3 Million cash to be split evenly amongst both
Estates.