Appeals Court Upholds $3 Million Verdict for Family of Truck Driver Killed at Propane Plant

Published February 23, 2012 · Ohio Appeals Courts

Robert Romig Jr. had driven trucks since 1968 and logged more than two million miles. He died in a New Hampshire propane yard when a seven-foot stack of steel cylinders, loaded onto his trailer by another company's employees back in Ohio, tipped over and crushed him against a crane. A Tuscarawas County jury awarded his widow more than $3 million. On January 27, 2012, the Fifth District Court of Appeals affirmed that verdict in Romig v. Baker Hi-Way Express, Inc., 2012-Ohio-321, and in doing so answered an important question for every Ohio worker hurt by someone other than their employer.

How the load was built

Mr. Romig drove for Baker Hi-Way Express, a motor carrier. On June 17, 2005, he backed his drop-deck trailer into the loading dock at Worthington Cylinder Corporation to pick up empty propane tanks. Worthington's employees loaded the trailer using an overhead crane and a forklift.

The tanks were shipped in "cradles" that Worthington designed: sixteen cylinders of 141 pounds each, strapped together with steel bands on wooden slats. Each assembled cradle weighed 2,568 pounds and stood seven feet tall. The trailer's forward deck sits higher than its rear deck, and the dimensions made it extremely difficult, if not impossible, to fit four cradles on the upper deck without one hanging over the edge. That day, Worthington's loader put four cradles up top. The fourth overhung the lower three by about an inch.

Worthington's own dock manager testified that the rule was three cradles on the upper deck, that a fourth was never to be placed there with any overhang, and that there was never any reason to put a fourth cradle up top at all. Baker's drivers testified they had never heard of the three-cradle rule. One said he had asked a Worthington loader about an overhanging cradle on a prior trip and was told that was simply how the cradles were loaded.

Mr. Romig delivered part of the load safely. At the second stop, while connecting a mobile crane to the overhanging fourth cradle, it tipped and killed him. The Worthington employee who had built the load testified that when he heard about the accident, he immediately thought of the overhang.

The jury's verdict, and the defense that failed

Mrs. Romig sued Worthington for wrongful death. The jury found that Mr. Romig was not negligent and returned a verdict against Worthington for more than $3,000,000.

Worthington's main argument on appeal was that the jury should have been allowed to blame Baker, Mr. Romig's employer. OSHA had investigated Baker and issued citations. Under R.C. 2307.23, Ohio's "empty chair" statute, a defendant can ask the jury to assign a percentage of fault to a person the plaintiff did not sue, and the defendant's own share of the verdict shrinks accordingly. Worthington wanted Baker in that empty chair.

The Fifth District said no. Ohio's workers' compensation system, written into the state constitution and into R.C. 4123.74, makes a complying employer immune from damage claims for a worker's injury or death. The court held that this immunity cannot be undone through the back door of an empty-chair defense. In the court's words, "a tortfeasor cannot raise the affirmative defense of the empty chair as to an employer for negligent acts." Allowing it, the court reasoned, would be completely inconsistent with the workers' compensation bargain the constitution and the legislature created.

One judge dissented on this point, which tells you the issue was contested. But the majority's ruling stands, and it protects injured workers and their families from having a full verdict diluted by blame that the law does not allow to be assigned.

Why the "latent defect" question went to the jury

Worthington also argued that it was entitled to judgment as a matter of law because a driver is responsible for inspecting and securing his own load, and the one-inch overhang was visible to Mr. Romig. The court acknowledged that a carrier generally has the primary duty to load safely, but when a shipper takes on the loading itself, the shipper is responsible for defects that are latent, concealed, and not discernible through ordinary observation.

The key point in the opinion is this: the condition of a load can be readily apparent while the danger it creates is not. Whether a defect could have been discovered by ordinary observation is a question for the jury, and the jury heard extensive evidence on what caused the cradle to shift and whether Mr. Romig should have recognized the hazard. The appeals court would not substitute its judgment for the jury's.

That reasoning matters well beyond propane yards. Defendants in truck and workplace cases routinely argue that the injured person "should have seen it." Romig confirms that the question of whether a danger was really obvious belongs to a jury, not to a judge on a motion.

Two tracks of recovery after a work death

When a worker is killed on the job by another company's negligence, the family has two separate paths, and they work together:

1. Workers' compensation death benefits from the employer's coverage. These are paid without regard to fault, but they are limited and they do not compensate for the loss of a husband, father, and companion in the way a jury verdict can.
2. A wrongful-death claim against the third party that caused the death. Here, that was Worthington. This claim can recover the full measure of the family's loss, and as Romig shows, the third party cannot reduce its share by pointing at the immune employer.

Two cautions apply. First, the Bureau of Workers' Compensation has a right to be repaid from the third-party recovery, and as I explained in my post on the BWC lien, that lien has to be handled correctly or the settlement can unravel. Second, a claim against the employer itself is only possible for an intentional tort, and the Ohio Supreme Court made that standard very hard to meet, as discussed in my post on the employer intentional-tort statute. The third-party claim is usually where the real recovery lies.

What this means for you

• If a family member died at work, find out who else was involved. Shippers, equipment manufacturers, property owners, and other contractors are not protected by workers' compensation immunity. In Romig, the company that built the load was the responsible party, not the employer.
• Evidence disappears fast. The loading rules, the training records, the testimony of the dock workers, and the OSHA findings all mattered in this case. Preservation letters need to go out immediately.
• Expect the "you should have seen it" defense, and do not be discouraged by it. Visible is not the same as obviously dangerous. That distinction is for a jury.
• A full verdict is possible. More than $3 million for a 2005 death, affirmed on appeal, shows what an Ohio jury will do when the evidence is properly developed.

Our office handles wrongful death claims and truck-related injury cases throughout the Dayton area, and we understand how workers' compensation, the BWC lien, and the third-party claim fit together.