 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Dominguez v. Perovich Properties3/30/2005
activating the auger. Id. The plaintiff's arm was crushed by the auger. Id.
The plaintiff sued his employer in tort, essentially alleging intentional and wilful conduct on the part of the employer for failure to provide safety and other training, failure to supervise, failure to install safety devices, failure to require certain safety practices, and assigning the plaintiff to duties outside of those to be performed under his contract. Id. at *1, 3; Cordova I, 273 F. Supp. 2d at 1216. As indicated in the federal district court's opinion, the plaintiff and the co-employee "were unsupervised at the location and time of injury[,] . . . there was no guard on the auger[,] . . . there were no lock-out/tag-out procedures to prevent the auger from being engaged," and neither employee had been offered, nor had either received, any training with regard to "the operation or maintenance of the auger." Id.
The Cordova I court analyzed Delgado and discussed its three-pronged test for willfulness. Cordova I, 273 F. Supp. 2d at 1217-20. Interpreting the first prong of the test as one requiring general foreseeability, the federal district court determined that the assignment of tasks to the plaintiff was not reasonably expected to result in the loss of his arm. Id. at 1219. As to the second prong, the court examined the subjective intent of the employer, and determined that there was "no evidence that [the employer] expected any of its actions to result in [the p]laintiff's injury or that [the employer] utterly disregarded the consequences of actions." Id. In explaining this determination, the court stated: "I find that [the employer] could not have utterly disregarded consequences that are not reasonably foreseeable nor could [the employer] have reasonably expected [the p]laintiff's injury to have occurred." Id. at 1219-20. Additionally, under the second prong, the court determined that "the facts relative to subjective intent are clearly distinguishable from those in Delgado, where one is easily repulsed by the insensitivity of [the employer] to what had to be most certainly a disastrous outcome for the employee." Id. at 1220. These determinations as to the first and second prongs of the Delgado test made it unnecessary for the Cordova I court to examine the third, proximate-cause prong. 273 F. Supp. 2d at 1220. Following these analyses, the district court concluded that Delgado envisioned "conduct that is well above negligence," and that the facts did not establish that the plaintiff's claims fell under the "willful, intentional acts exception to the , as enunciated . . . in Delgado." Cordova I, 273 F. Supp. 2d at 1220.
In affirming the district court's summary judgment in Cordova I, the Tenth Circuit analyzed both Delgado and Morales and concluded that "[the worker's] case is much more similar to the situations discussed in Morales than it is to Delgado." Cordova II, 2004 WL 2307344, at *3. The Tenth Circuit held that, " t most, [the employer's] actions were negligent." Id. In reaching these conclusions, the Tenth Circuit looked specifically at the determinations in Morales that (1) " here no indication that [defendants] knew or should have known that their actions were the equivalent of sending Morales into certain severe injury or death," and (2) " here no indication that the failure to provide safety devices was anything but negligent in this case." Cordova II, 2004 WL 2307344, at *3 (internal quotation marks and citations omitted). Further, the Tenth Circuit noted that "no one required or directed [the employee] to remove the twine or grain from the grain auger," and, therefore, there was "no proximate cause between any intentional conduct by [the employer] and [the employee's] in
Page 1 2 3 4 5 6 7 8 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|