I have scrubbed the names of the accused and deceased worker, as this could happen at just about any facility where hazardous materials are present. I should also state, the lawyers are suing the Refinery, the deceased employer (a contractor firm hired by the refinery), the manufacturer of the H2S monitor, the parent company of the manufacturer, the marketing company of the manufacture, and the rental company that actually provided the monitor. All are pretty much acused of the same failures and that somehow everyone was supposed to have known the monitor was defective in its design.
Who knows how this will play out in court; I share this as an educational and awareness tool.
GENERAL ALLEGATIONS
A contractor died from exposure to deadly chemicals and fumes at the Refinery in February 2023. He left behind a new baby and a family who loved him. On information and belief, Defendants owned and operated the Subject Plant. The Refinery contracted with a company to perform work at the Subject Plant. The subject Plant had been closed for months due to a malfunction of equipment. While onsite, the worker was exposed to dangerous chemicals and fumes—including but not limited Hydrogen Sulfide (“H2S”)—which caused his death.
During the restart, the deceased was ordered to perform dangerous tasks outside the scope of his contracted work and tasks that were not a part of his employer’s regular business, that unnecessarily and dangerously exposed him to H2S and other dangerous toxic fumes. Upon information and belief, equipment provided by Defendant (a rental company) was used in connection with the work performed, giving rise to the incident. The refinery and/or the employer of the deceased were consciously indifferent to the substantial risk of death from the work they ordered the deceased to perform. According to malfunction reports submitted in December to the Colorado Department of Public Health and Environment’s Air Pollution Control Division, Defendants knew the Subject Plant leaked pollutants such as H2S and sulfur dioxide.
In February 2023, the refinery announced a vapor leak it detected in refining process equipment at the Subject Plant. During this time, Defendants placed the deceased worker in direct exposure to toxic vapors including H2S. He is known to have been exposed to chemical fumes in sufficient degree to cause his death.
Upon information and belief, at the direction of his employer and/or the refinery, the deceased worker underwent a health screening for respiratory distress after toxic exposure and was ordered to continue work. Upon information and belief, Plaintiff was equipped with a gas detector manufactured by Defendants XXXXXXX. However, because the gas detector failed to properly function, it did not alert Plaintiff that he suffered a harmful exposure.
On February 21, 2023, the refinery gave the “all-clear” after responding to the leak. The deceased worker was found alone, in his hotel room, by his co-workers on or about February 28, 2023. Neither the refinery nor his employer initially informed the authorities that he had been exposed to toxins at the Subject Plant.
Toxicology results from an autopsy of the deceased worker showed significant recent exposure to H2S as indicated by elevated thiosulfate levels. The refinery and/or his employer had inadequate policies, procedures, and equipment to make work reasonably safe; both defendants knew this; and both defendants nonetheless instructed that the work be performed.
While this action has been pending, Defendants have willfully and/or wantonly continued their wrongful behavior. Since the death, the Subject Plant released potentially dangerous sulfur dioxide and hydrogen sulfide at the Subject Plant and into the surrounding neighborhood. Contrary to the refinery’s assessment that “[n]o immediate action [was] needed by the community” regulators warned neighbors to take precautions.
The Defendants’ negligence, negligence per se, gross negligence, and intentional acts proximately caused the contractor’s death. The specific acts and/or omissions included the following:
a. instructing and ordering the contractor to perform the work even though Subject Plant was unreasonably dangerous, and the Defendants had failed to implement adequate policies and procedures and to provide adequate equipment to perform it safely;
b. issuing permits to work at the Subject Plant despite actual knowledge that it was unreasonably dangerous;
c. violating OSHA regulations, including but not limited to 29 C.F.R. 1926 and 29 C.F.R. 1910, among others;
d. failing to adequately train employees and contractors;
e. failing to provide competent personnel to perform and to supervise the work;
f. failing to provide adequate safety equipment;
g. failing to provide adequate health monitoring;
h. failing to provide adequate air quality monitoring;
i. failing to provide adequate medical treatment;
j. failing to adequately identify and mitigate the hazards associated with the work;
k. maintaining the premises in an unreasonably dangerous condition;
l. failing to provide adequate work processes and procedures to perform the task;
m. knowingly permitting unsafe chemical and fumes at the Subject Plant and failing to take adequate measures to mitigate the associated dangers;
n. failing to provide adequate training related to material handling— specifically relating to the cleaning vessels at the Refinery;
o. failing to provide adequate supervision, including but not limited to supervision by the Defendants’ managers, supervisors, and employees— including specifically the safety representative for the refinery;
p. failing to warn of known hazards associated with work at the Subject Plant, specifically the release of H2S; and
q. other acts deemed negligent and grossly negligent.
(MANUFACTURING DEFECT – H2S Personal Detector)
Plaintiff’s injury was reasonably foreseeable, and he was an intended end user/enjoyer of the gas detector in question. His injuries were the result of manufacturing defects relating to the single-gas detector in question. Plaintiff was in a class of persons that the manufacturer should have reasonably foreseen as being subject to the harm caused by the manufacturing defects relating to the gas detector in question. The gas detector was defectively manufactured when it the manufacturer’s control.
The gas detector was defectively manufactured because its use creates a substantial and/or extreme degree of risk of serious bodily injury associated with its failure to properly function without creating, generating and/or causing a chemical exposure hazard. The gas detector deviated in terms of its construction and/or quality from the specifications or intended functionality in a manner that renders it unreasonably dangerous. The gas detector in question was flawed and did not properly conform to the manufacturer’s own specifications nor was it identical to its mass labeled siblings.
Prior to the time of Plaintiff’s use of the gas detector, the manufacturer knew or should have known that
(1) it would be purchased and/or used without inspection for manufacturing defects;
(2) about the gas detector’s manufacturing defects; and
(3) that the defective nature of the gas detector had previously caused serious bodily injury to purchasers and/or users of the product.
Plaintiff could not, in the exercise of reasonable care, have discovered the defective nature of the gas detector. He could not have known that the gas detector was manufactured, designed, tested, constructed, fabricated, produced, assembled, marketed, supplied, distributed, and/or sold in such a manner that would increase the risk of serious injury. Ordinary consumers would not have recognized the potential risks of the gas detector in question.
The gas detector at the time of the exposure, was being used in the manner intended by the manufacturer or in the alternative, used or misused in a manner that was reasonably foreseeable by the manufacturer as involving a substantial danger not readily apparent. At the time Plaintiff used the gas detector, it was in substantially the same condition as when it left the possession of the manufacturer.
The manufacturer failed to give adequate warnings of the latent dangers associated with the gas detector in question. The gas detector in question was unreasonably dangerous for its intended uses due to the manufacturing defects described herein. The benefits of the gas detector in question were not outweighed by the risks associated with its manufacturing defects. There existed safer alternative designs. The safer alternative designs would have prevented the subject injuries. The safer alternative designs were economically and technologically feasible at the time the gas detector left the control of the manufacturer. The manufacturer failed to identify dangers posed by the gas detector; investigate complaints about malfunctions and/or injuries correlating to use of the gas detector; perform adequate testing to identify dangers posed by the gas detector; perform testing to identify methods for mitigating the dangers posed by the gas detector’s use; and develop and provide adequate warnings of the latent dangers created by the gas detector’s use.
The gas detector was unsafe for its express and intended purposes. Plaintiff detrimentally relied on representations, express and implied, that the gas detector would function properly and would be safe for him to use/enjoy. The manufacturer should not have placed the gas detector on the market given its defective condition, improper labeling and inadequate instructions and warnings.
Source: https://wp-cpr.s3.amazonaws.com/uploads/2024/11/11B83DBCFE9DB-1.pdf