$28 Million Verdict for Family of Lineman Killed by Rotten Pole: Third-Party Claims After a Work Death

Published June 27, 2017 · Verdicts & Settlements

Keith Jester climbed utility poles for a living. He was 43, a senior lineman and trainer for Duke Energy Ohio, and he knew the work and its dangers as well as anyone. What he could not know was that the pole he was strapped to had decayed below ground, out of sight, and that the company hired to check it had never looked.

On June 7, 2017, a Hamilton County jury returned a verdict of nearly $28 million for his wife and three children. The case is a powerful example of a point I make to every family that loses someone on the job: workers' compensation is not the only answer, and often it is not the most important one.

What happened, according to the reports

The facts below come from a June 13, 2017 press release issued by the family's attorneys, the Cleveland firm Spangenberg Shibley & Liber, and the firm's own account of the verdict. Our office was not involved in the case.

• The pole failed below ground. While Mr. Jester was strapped to it, the pole broke below the ground line because of hidden underground decay and fell. He survived for about an hour before dying of internal injuries.
• The inspection that never happened. Duke Energy had hired Utilimap Corporation, a division of Quanta Services, to inspect roughly 30,000 poles in southwestern Ohio. That inspection took place about 28 months before Mr. Jester's death.
• The skipped pole was billed anyway. According to the release, evidence showed Utilimap's inspectors skipped the pole that later failed, did not tell Duke Energy, and then billed for the pole and were paid.
• The verdict. After a trial of about two and a half weeks in the Hamilton County Court of Common Pleas, the jury found Utilimap 100 percent negligent for failing to inspect the pole and failing to notify Duke. It found Mr. Jester was not negligent at all, even though, as the release reported, Utilimap blamed him for his own death.

Why the family could sue an inspection company

When a worker is killed on the job in Ohio, the employer is almost always off limits. Under R.C. 4123.74, an employer that participates in the workers' compensation system is immune from lawsuits for injuries and deaths that arise out of employment. The family receives death benefits through the Bureau of Workers' Compensation instead, and those benefits are limited. They do not compensate a widow for the loss of her husband's companionship or children for the loss of their father's guidance.

That immunity belongs to the employer and its employees. It does not extend to anyone else. An outside company whose negligence causes a worker's death stands in the same shoes as any other wrongdoer, and that is exactly what the Jester case shows. Utilimap was not Mr. Jester's employer. It was a contractor paid to make the work safer, and the jury found it failed to do that job.

I explained how the comp claim and the outside claim run side by side in my post on the two-track recovery after a work injury. In a death case the stakes on the second track are even higher.

Who the "third party" might be

Inspection contractors are one example. In the work-death cases families bring to us, the outside party is just as often:

• A general contractor or another subcontractor on a construction site whose crew created the hazard.
• The manufacturer of a machine, tool, harness, or vehicle that failed.
• A property owner who brought workers onto dangerous premises.
• The driver of another vehicle in a crash on a work route.
• A maintenance, testing, or safety vendor whose job was to find the danger before it hurt someone.

An Ohio appeals court upheld a $3 million verdict for the family of a truck driver killed at a propane plant, a case I wrote about in 2012. The pattern is the same: the worker's own employer may be immune, but the company that actually controlled the danger is not.

How these cases are proven

A family does not have to show that the outside company meant to hurt anyone. It has to prove ordinary negligence: that the company owed a duty of care, failed to meet it, and that the failure caused the death. In an inspection case the most important evidence is often on paper:

• The contract that spells out what the contractor promised to inspect and report.
• Inspection logs, maps, and invoices that show what was done, and what was billed.
• Maintenance and replacement records for the equipment that failed.
• The failed equipment itself, which must be preserved and examined by experts before anything is discarded or repaired.

The billing record in the Jester case is a good illustration of why we ask for everything. An invoice for work that was never performed can tell a jury more than any expert.

What a wrongful-death claim recovers

Ohio's wrongful-death statute, R.C. 2125.02, allows the personal representative of the person who died to bring the claim for the benefit of the surviving spouse, children, and parents, who are presumed to have suffered damages, and for other next of kin. The damages listed in R.C. 2125.02(B) include lost financial support, lost services, the loss of the person's society and companionship, lost prospective inheritance, and the mental anguish of the survivors. When a death is not instantaneous, the estate may also have a separate "survival" claim for what the person endured before death.

Two more points are worth knowing. First, Ohio's cap on noneconomic damages does not apply to wrongful-death actions; R.C. 2315.18(H)(3) expressly excludes them. A jury's judgment about the value of a father's life to his children is not cut down by a formula. Second, the claim must be filed within two years of the death under R.C. 2125.02(D)(1), and the evidence in an industrial death can disappear much faster than that. You can read more about who can bring a wrongful-death claim in Ohio.

Families should also know that when the BWC has paid death benefits, it has a statutory right under R.C. 4123.931 to be repaid from a third-party recovery. That lien must be handled correctly and negotiated, not ignored.

What this means for you

If someone you love was killed at work, the workers' comp death claim is only the beginning. Ask who else was responsible for the equipment, the site, the vehicle, or the inspection, and do it while the evidence still exists. The Jester verdict shows that Ohio juries will hold outside companies fully accountable when they cut corners on safety, and will reject efforts to blame the worker who paid with his life. Our wrongful death practice handles these cases throughout the Dayton area, alongside the family's comp claim.