There 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
AY,
I have not found a Mississippi case, but I found an opinion on a Work Comp Lawyer’s blog:
(Bee stings, bug bites and other weird Illinois work injuries). My guess is that the Mississippi law would follow his reasoning.
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.
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…..
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Do you have a Mississippi case?
So far only Mississippi statutes have been mentioned.
We need a case or two.
Nick,
Happy Memorial Day to you and to all JT readers!
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.
The key, in Mississippi, as to whether or not there is an independent contractor status or employee status is defined as:
(ibid, “Sec. 71-3-3. Definitions”).
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.
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…..
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.
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It depends on the state.
In this case Mississippi law:
(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:
(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.”
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
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.
“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.
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.
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Your tingling legs will tell on you.
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
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Good point.
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.
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..
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
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.
“Garfias was working for a lawn service company at the time of the accident.”
Sometimes workers compensation laws preclude tort claims.
This is a bad day that just got worse…. Truly a federal question…