Mississippi Man Run Over By Lawn Mower While Trying To Escape Yellow Jackets

250px-Grass_dsc08672-nevit250px-European_wasp_white_bgThere is an interesting tort lawsuit out of Jackson, Mississippi where Everardo Garfias is suing Husqvarna Professional Products Inc. and Kawasaki Motors Corp., U.S.A., the maker of his Husqvarna lawnmower after it ran over him. Garfias had just been attacked by yellow jackets when he jumped off his lawnmower. The lawnmower however did not shut off and ran over him — severely cutting his legs and completely severing one of his knee caps. Garfias was working for a lawn service company at the time of the accident.

Kawasaki is seeking a transfer to federal court, presumably on diversity grounds since the company is from a different state.

Often these cases involved defenses of substantial alteration over the years of use and work on a machine. However one report states that Garfias bought the lawnmower less than two months before the accident — making such defenses more difficult. There is also misuse as a defense but foreseeable misuse is considered a legitimate basis for a product liability action in the United States.

These cases can still turn on plaintiff’s conduct question if there was something on the machine that caused it to continue to run. Yet, he will likely argue that there is a design defect in not having a better kill switch system that shuts down the machine if there is no operator. Yellow jackets, debris, and other dangers are common reasons for people to stop mowing. It is therefore foreseeable that such sudden stops will occur in the operation of a mower.

We will try to follow the case, though it could be a couple years from any verdict with a transfer to federal court. Companies tend to prefer federal courts where the judges are viewed by many lawyers as a bit more conservative on tort cases.

Source: CBS

28 thoughts on “Mississippi Man Run Over By Lawn Mower While Trying To Escape Yellow Jackets

  1. Garfias was working for a lawn service company at the time of the accident.”

    Sometimes workers compensation laws preclude tort claims.

  2. Products liability law suit by a human plaintiff against a big corporation. Don’t hold your breath for a win even though this looks like a really good case. The law is so twisted in favor of corporations that even this kind of law suit will probably face stiff opposition. It is sad but corporations rarely take or are forced to take personal responsibility for their actions. Personal responsibility is for humans only.

  3. Dredd You are right about workers comp limiting any suit against the employer but the lawnmower manufacturer can be independently sued as a third party

  4. Worked a few cases where the plaintiff had overridden the kill switch. One was for John Deere. The plaintiff had a about 10 acres w/ several hills. He would have to get off his riding mower often so he tinkered w/ the kill switch. The plaintiff was mowing an embankment and felt the mower beginning to tumble so he jumped off. The blades continued to run and cut off his hand. Another safety measure sometimes overridden are back up beepers on heavy equipment. I worked for a civil engineering company who had a summer intern killed by a backing dump truck on a road project. The independent truck operator had disengaged the beeper. In that same vane, incredibly the City of San Diego has disengaged back up beepers on the heavy equipment used to groom their beaches because of noise complaints from beachfront owners. Now, I HATE those beepers. Being an introvert, noise really bothers me. But, if there’s anyplace they’re needed it’s on the beach w/ kids. The complaints were mostly from early morning waking people. Just start working the beach an hour later for chrissake..

  5. Jomo, Thanks for showing Dredd, “A little knowledge is a dangerous thing.” particularly on his favorite Holiday. Happy Memorial Day to all veterans, their families. Spending time in San Diego has made me appreciate even more the sacrifice of veterans and their families.

  6. Jomo999 1, May 27, 2013 at 9:14 am

    Dredd You are right about workers comp limiting any suit against the employer but the lawnmower manufacturer can be independently sued as a third party
    ============================
    Good point.

  7. nick spinelli 1, May 27, 2013 at 9:33 am

    Jomo, Thanks for showing Dredd, “A little knowledge is a dangerous thing.” particularly on his favorite Holiday. Happy Memorial Day to all veterans, their families. Spending time in San Diego has made me appreciate even more the sacrifice of veterans and their families.
    =================================
    Your tingling legs will tell on you.

  8. Garfias was working for a lawn service company at the time of the accident.”

    Sometimes workers compensation laws preclude tort claims.

    As I said before.

    This is for nick’s tingly little knowledge thingy.

  9. Worker’s compensation may be a factor but typically not. The article mentioned that the injured party recently purchased the machine which indicates he is not an employee. Employers can cover themselves with worker’s comp but rarely do. Also the manufacture can be brought into a worker’s compensation case if the product is defective. The makers of Celebrex are in litigation for causing permanent gastric impairment. In California, the workers compensation companies are taking care of the employees and are seeking reimbursement from the makers of Celebrex.

  10. I have a Snapper riding mower and it has two safety features:
    1) An engine cutoff – get up off the seat, engine cuts off. You can get off the seat and leave the engine running but only if you lock the clutch/brake in place thus preventing the mower from moving.
    2) blade cutoff – your feet move off the pedal, blade stops. No way to disable this.

    Unless someone tampered with my mower or it was defective, I would not suffer what this man suffered.

    Without knowing what model he has, we can’t find out if it had these same features

  11. Michaelb 1, May 27, 2013 at 10:04 am

    Worker’s compensation may be a factor but typically not. The article mentioned that the injured party recently purchased the machine which indicates he is not an employee. Employers can cover themselves with worker’s comp but rarely do. Also the manufacture can be brought into a worker’s compensation case if the product is defective. The makers of Celebrex are in litigation for causing permanent gastric impairment. In California, the workers compensation companies are taking care of the employees and are seeking reimbursement from the makers of Celebrex.
    ====================================
    It depends on the state.

    In this case Mississippi law:

    The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.

    (MISSISSIPPI CODE, TITLE 71. LABOR AND INDUSTRY, CHAPTER 3. WORKERS’ COMPENSATION GENERAL PROVISIONS, Sec. 71-3-9. Employer liability exclusive). The critical factor is whether or not the employer carried WC insurance for this employee.

    Who is or is not an employee (or an “independent contractor”) is also a creature of state law under WC:

    (d) “Employee” means any person, including a minor whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied …

    (ibid, “Sec. 71-3-3. Definitions”). The exception for a licensed subcontractor applies, so there is some fact questions there.

    Whether the injured furnishes his own tools or not is not always dispositive of “employee” vs contractor, so there is a fact question about whether or not a lawnmower is a tool of the trade that when furnished is controlling of the determination of “employee.”

  12. Dredd,

    Normally….. I’d agree, but here you have a super intervening force….. I’d agree if he were a bee keeper alone…..but here, you have the bees contributing to the issues….. But for the bees he would have probably stayed on the law mower…..

  13. Classic “nick”:

    nick spinelli 1, May 27, 2013 at 9:33 am

    Jomo, Thanks for showing Dredd, “A little knowledge is a dangerous thing.” particularly on his favorite Holiday. Happy Memorial Day to all veterans, their families. Spending time in San Diego has made me appreciate even more the sacrifice of veterans and their families.

  14. The key, in Mississippi, as to whether or not there is an independent contractor status or employee status is defined as:

    (r) “Independent contractor” means any individual, firm or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workers independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses, one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.

    (ibid, “Sec. 71-3-3. Definitions”).

  15. Scary case! My lawn tractor shuts off even if I just lean over and part of my backside goes off the seat. This seems to be a “good” case for the plaintiff without any additional evidence of alterations or risky behavior on plaintiff’s part. Kawasaki should dig deep.

  16. Anonymously Yours 1, May 27, 2013 at 10:52 am

    Dredd,

    Normally….. I’d agree, but here you have a super intervening force….. I’d agree if he were a bee keeper alone…..but here, you have the bees contributing to the issues….. But for the bees he would have probably stayed on the law mower…..
    ================================
    Do you have a Mississippi case?

    So far only Mississippi statutes have been mentioned.

    We need a case or two.

  17. We don’t know the age of the mower. If it’s a current model, I’m betting a shutoff was circumvented by the operator.
    We had a paper cutter who continually defeated the safety switches. I removed several of them, only to return later in the day to find another safety blocked. It took some doing, but we got rid of him before any injury happened. And then there was our shipping clerk, for whom we bought safety shoes like the others we gave to all production employees. He repeatedly substituted sneakers for the shoes, and of course ran over his foot with a lift truck. We had to pay for his damages (permanent partial disability) because we didn’t supervise him every minute of the day.

  18. AY,

    I have not found a Mississippi case, but I found an opinion on a Work Comp Lawyer’s blog:

    A caller to my office wanted to verify what a lawyer told him. The caller had been stung by a bee which caused him to fall and break his ankle. The lawyer he had previously called had told him that the law says that bug bites and bee stings are never covered under the Illinois Workers’ Compensation Act.

    Well, that’s not true.

    No matter your injury, you have to look at the context of how you got hurt. This is certainly true with insect cases.

    For example, let’s say you work for the cable company and have to go and repair a customer’s TV. You head out to the back of their house to look at a cable and all of the sudden discover that there is a bee hive right next to it. Before you know it, a swarm of bees is on you and you are stung multiple times. In my opinion, that case would be covered as a work related injury.

    (Bee stings, bug bites and other weird Illinois work injuries). My guess is that the Mississippi law would follow his reasoning.

  19. Michaelb 1, May 27, 2013 at 10:04 am

    ….the manufacture can be brought into a worker’s compensation case if the product is defective.
    ===================================
    True, and here is an interesting factor in Mississippi:

    When you are injured on the job and the responsible party is not your employer, you may file a personal injury lawsuit against that 3rd party for your losses. You will receive workers compensation while you are unable to work, and your workers compensation carrier will have to pay your medical expenses. In the lawsuit against the third party, you can include these expenses — compensation for wage loss and medical expenses — as part of your claim. However, the workers comp carrier is going to file a lien against your lawsuit. What this basically means is that the workmans compensation carrier is seeking recovery of the money they paid to you, from the proceeds of your lawsuit.

    (Alonzo). If the plaintiff was an employee then a lien will be filed by the WC commission on his lawsuit against the third party.

    Employee or independent contractor status is an important consideration, because if he is not an employee then no lien can be filed.

  20. just observin’ 1, May 27, 2013 at 10:53 am

    Classic “nick”:
    ====================
    “I’ll show you yours if you show me mine.”

    Classnick.

  21. I got stung by a yellow jacket when I was help building a house. Killed it. Didn’t sue anybody.

  22. rafflaw, I’m honored to share a Memorial Day wish to you, a person who understands and respects it.

  23. all mowers built in the last 20- 30 years have multiple safeties. the only issue is who disabled them.

  24. I agree with several others – the driver or his employer deliberately disabled the safety switches. This lawsuit should be thrown out – it’s just a shakedown by a greedy worker and (especially) the lawyer.

  25. If the driver applied for workers comp. and it was granted, he would receive benefits that would be paid back assuming the third party claim of defective equipment prevailed.

    I his workmans comp claim was denied, then no lien could be placed on the thired party defective equipment claim.

    It would seem, then, that it is the first issue that needs resolved.

    There is a two-year statute of limitations on workers comp. claims in Miss.

Comments are closed.