Tuesday, Dec. 16, 2008 | 2 a.m.
The parents of one of two maintenance workers who died last year after entering a toxic manhole at the Orleans filed a wrongful-death lawsuit Friday seeking damages against Orleans owner Boyd Gaming.
Workplace accident lawsuits against Nevada employers are extremely difficult for workers and workers’ families to win. That’s because state courts have held that workers’ compensation laws bar employees from holding employers responsible for workplace injuries and fatalities unless they can prove that the employer intentionally caused the act.
But an attorney for Debra Koehler-Fergen and Robert Koehler, parents of Orleans victim Travis Koehler, intends to argue that the deadly Orleans incident qualifies under that interpretation. He filed the complaint with Nevada District Court.
“This is different because it was by definition an intentional and purposeful act,” attorney George Bochanis said in an interview at his office Monday.
The deaths occurred on Feb. 2, 2007, after maintenance worker Richard Luzier entered a manhole to fix a pipe and was overcome by toxic fumes. When workers Travis Koehler and then David Snow entered to save him, all three fell unconscious.
Luzier and Koehler died. Snow was in critical condition before recovering.
A Nevada Occupational Safety and Health Administration inspector originally found that Boyd had “willfully” disobeyed safety laws, a rare finding that means the company knew what it was doing was dangerous and a violation of safety laws, but did it anyway.
Boyd had been warned repeatedly about the danger of not having a policy to deal with the confined spaces of manholes, but had taken no corrective action, the inspector discovered.
But the agency downgraded the citations to “serious” violations in a last-minute and highly unusual settlement that involved top state political appointees in a process that is usually confined to regulators.
The OSHA inspector on the case quit his job in protest.
Don Barker, a former health and safety manager at Boyd who testified the company was aware of the safety problems but refused to fix them, also left his company in protest.
Boyd spokesman Rob Stillwell said Monday the company could not comment on pending litigation. In the past, Stillwell has called the incident a “horrific tragedy” and said the company would work hard to prevent another accident. Under the settlement deal worked out with OSHA, Boyd is revamping its safety policies and procedures.
After an investigation into Nevada OSHA’s conduct, the federal Labor Department said Nevada OSHA could have upheld the “willful” violations and asked Nevada OSHA to change some of its policies. Nevada OSHA responded that it had done nothing wrong and would not make any changes.
Bochanis will seek to prove that Koehler’s supervisors ordered him into the manhole knowing it was dangerous — and will ask the court to consider this an intentional act rather than merely gross negligence. The OSHA inspection report states that witnesses said the supervisors screamed at Koehler to go in after Luzier and then for Snow to go in after Koehler and Luzier.
But the supervisors told OSHA the men jumped in on their own.
Under state law, Bochanis will not be able to use the OSHA report in court. But he can find and use the same evidence and witnesses.
Koehler-Fergen, Koehler’s mother, has spent the nearly two years since her son’s death seeking to hold both Boyd and Nevada OSHA accountable for what she says is their responsibility for the tragedy.
She met with several lawyers before she found one willing to take her case.
“I just want to find justice for Travis,” Fergen said in an interview at her attorney’s office Monday. “I want to make sure this never happens again.”
Workers’ compensation attorneys say they almost always turn away workers and families seeking to sue employers for workplace injuries because those cases are so difficult under current case law.
In 2000, the Nevada Supreme Court held that workers at Circus Circus in Reno who had been repeatedly exposed to toxic chemicals could not sue their employer even though workers had told their supervisors the chemicals were making them sick.
“The relevant inquiry is not the degree of negligence or even depravity on the part of the employer, but the more narrow question of whether the specific action that injured the employee was an act intended to cause injury to the employee,” the court wrote.
The language sets a standard of proof that is almost impossible to meet, said Ray Badger, a Carson City workers’ compensation attorney.
“You would need fabulous facts of total safety disregard, and even with that you would have a great chance of losing,” Badger said. “Absent an assault, how can we prove that they intended to injure someone?”
But Bochanis points to a 1990 Nevada Supreme Court decision in a case he argued that found that an employee at a pub could bring a lawsuit against a boss she said intentionally closed a refrigerator door on her arm.
“To us, the Orleans case may be worse,” Bochanis said. “You know this workplace is dangerous and deadly and you were told about it. Yet, you sent three people down there.
“We’re not claiming they were murderers, but what they did was knowingly dangerous and had to be intentional.”