$3,000,000 – Talona Ausland v. Atlantic Electric Company

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.

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Robert J. Mongeluzzi

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