Estate of Gonzalez

v.

City of Owensboro

&

Downtown Owensboro Inc.,

&

Kevin McClearn, Rob Hecker, Jason Ward, Shelly Singleton, Byron Edge, Clint Holmes, Jordan Camp, and Kevin Collignon


Format & Confidentiality

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LAW & SAFETY RULES

“Kentucky law adopts the National Electrical code. This national safety standard require a structure’s owner to install and maintain electrical systems, wiring, and fixtures, to ensure and protect those who may come in contact with it."

— Kentucky Revised Statutes

“The owner or the owner’s designated agent of a live electrical system must be able to disconnect the electricity and implement Lock-out Tag Out promptly for workers on site."

— OHSA

“The structure’s owner or the owner’s designated agent must make the structure electrically safe or give adequate and timely warning of electrical dangers to a contractor or his employees."

— National Electric Code


OVERVIEW

This is a case about City and State government breaking safety rules that protect the public - and the unnecessary death of a husband and father of four.

City and State government employees share responsibility for that husband and father’s death -they put lights & paint before life or safety. Since 1995 the City of Owensboro has owned a commercial decorative lighting system, spanning the Blue Bridge; the City fondly calls the lights their “front porch lights.” However, these lights were installed by unqualified personnel who used improper plans and materials.  From its inception the lighting did not comply with the National Electric Code.  Over the years the City failed to uncover the safety problems and eventually insulation and lighting fixtures fell in bad repair.  By 2013, when the bridger painters started, preparing to repaint the City’s front porch, most of the lights still shown, but 480-volt current flowed thru dry, faded, cracked insulation and posing electrical arc hazards. Despite promises to disconnect the City’s front porch lights for the bridge workers- the City delayed responding to repeated requests to turn off the power.  

The structure of the Blue Bridge is owned and maintained by the Kentucky Transportation Cabinet. In 1995, KTC approved the City’s code deficient front porch lights and turned a blind eye to the City’s maintenance of the lights, despite regularly having employees on the bridge and completely renovating their own lighting on the bridge.  By 2013, KTC according to their own records had not required permits of City or contractors to maintain the decorative lighting.

As the owner, KTC of the Blue Bridge awarded the bridge painting contract without any concern for the hazards that City’s lights might pose. KTC Safety personnel and District Two personnel, senior management, supervisors, engineers, and engineering techs kicked off the painting contract in Owensboro. Other personnel  were on site directing contractor work every day. The KTC defendants knew that the decorative lights needed de-energized - but never stopped work despite the obvious hazard.  The Kentucky Labor Cabinet cited KTC for a “serious” safety violation for allowing employees to work around unprotected power circuits.  KTC accepted the penalty and paid the fine.

Subsequent inspections commissioned by the City confirm that the electrical system violated statutorily mandated safety codes. Even KTC has ordered that the City’s lights remain off because of the danger they pose.

A Timeline of Neglect, Indifference, and Miscommunication

Nett Gonzalez was inadvertently electrocuted by 480 volt current arcing from worn, defective wires.

CONCERNS OVER THE TARP CONTAINMENT SYSTEM FIRE HAZARD

From the very outset of the painting project, Nett Gonzalez expressed concerns that the tarp containment system would catch fire because the lights were not de-energized - even after multiple requests from Spartan once work began. 

  • The tarp is not very tight, when we - - clip it, it’s still loose. So, when we stretch the tarp to not have so many bellies or slack on the middle,…, we just pull on one side. …One of the side[s] of the bridge is just going to have some slack… 

  • [W]e w[ere] concerned about the lights touching the tarp…that it was going to be touching the tarp… (A. Gonzalez W.C. Hearing Transcript, p. 41; Identified in Plaintiff’s Hearing Exhibit 1, pp. 12 and 13).Nett had climbed the bridge, according to Mr. Morley’s notes, to check on something.  (Morley Depo p. 51).  According to Mr. Flores, he was the last person to speak with Nett.  When they last spoke Nett believed that the lights were very hot when they came on and Nett was concerned that the lights could get too hot for the tarp.   (Flores Depo, p. 9).

  • Mr. Pfeiffer stated that the decorative lights would heat up to 400 degrees C when used and presented a fire hazard to the tarps.  As the tarps were touching lighting, and in light of Nett’s previous concerns about the tarp the day of his death, Mr. Pfeiffer concluded that Nett was there to fix or tighten the tarp.  (Pfeiffer HT p. 154)

THE WIRES THAT ELECTROCUTED NETT GONZALEZ WERE NOT CUT.

The Defendants' theory that Nett Gonzalez "cut" the wires, either on purpose or negligently, is simply not supported by the evidence. 

  • An electrical engineer  performed exemplar cutting of the wiring and insulation and compared it with sections removed from the bridge.  (Pfeiffer HT pp. 150 & 179). The number, size, location, and shape of the holes in the insulation meant that insulation was not cut.  

  • The exposed wiring was the wrong color for a recent cutting; the wiring itself had been exposed to the weather for some time.  (Pfeiffer HT pp. 156-157).  In comparing the exemplar wire with the removed wire, Mr. Pfeiffer stated that there was no similarity: the bridge wire was corroded, and the exemplar wire was shiny.  (Pfeiffer HT p. 179).

  • The Leatherman tool simply did not have scorch marks on the cutting area of the tool. The scorching was on the grasping area of the tool - consistent with an inadvertent brushing of the tool against the wire or, at most, an attempt to simply move the exposed wires out of the way. 

LIABILITY NOTES

City of Owensboro:

The City accepted the decorative lighting without inquiring about its condition or compliance.  Over the years the City failed to exercise care in keeping the decorative lighting, wiring and equipment in a safe condition; the City only worked to keep a certain number of lights working. By 2013 the City had not maintained system documentation, maintenance file, or even the agreement on the decorative lights, despite their contractual responsibility for the lights.  By 2013 the connective wiring insulation was defective and further exposed workers to live electricity.

"Breakdown of Communications": Joe Scheppers, the Engineer for the City of Owensboro, has made a number of admissions that will haunt the City as this case progresses. 


The City lobbied and encouraged the Bridge painting to begin early as part of the their Revitalization Program. Then the City accepted responsibility to turn off the decorative lighting so that the Bridge painting could be begin. However, once Spartan made the call, the City could not figure out how to turn off or lock out/tag out the decorative lights. Net’s death was caused by this defective wiring condition and failure to lock out/tag out the decorative lighting.

"You have to go through the City to turn the power off". Jeff Tong, City employee, admits that only the City can turn the power off - and that it's the City's responsibility to perform maintenance to keep its property safe for the public. 

What they knew and when they knew it: Joe Schepers testifies that the City knew that de-energizing was important for Safety reasons. 

KTC Employee Defendants. 

Ky-OSHA investigated Nett Gonzalez’s death.  Ky-OSHA fined KTC and Spartan for violating 29 CFR Section 1926.416(a)(1).  Ky-OSHA concluded that KTC and Spartan allowed several employees to work with uninsulated metal tools, outriggers, and cables in close proximity to the energized decorative lighting circuit.  (See Morley Depo, Defendant’s Exhibits 1-3).   29 C.F.R. 1926.416(a)(1) states: "No employer shall permit an employee to work in such proximity to any part of an electric power circuit that the employee could contact the electric power circuit in the course of work, unless the employee is protected against electric shock by deenergizing the circuit and grounding it or by guarding it effectively by insulation or other means."  

Ky-OSHA investigated Nett Gonzalez’s death.  Ky-OSHA fined KTC and Spartan for violating 29 CFR Section 1926.416(a)(1).  Ky-OSHA concluded that KTC and Spartan allowed several employees to work with uninsulated metal tools, outriggers, and cables in close proximity to the energized decorative lighting circuit.  (See Morley Depo, Defendant’s Exhibits 1-3).  

29 C.F.R. 1926.416(a)(1) states:

"No employer shall permit an employee to work in such proximity to any part of an electric power circuit that the employee could contact the electric power circuit in the course of work, unless the employee is protected against electric shock by deenergizing the circuit and grounding it or by guarding it effectively by insulation or other means."

 

In 1995, KTC agreed that the decorative lights could remain on the bridge as long as Owensboro maintained them. KTC could have exercised care to discover the decorative lighting conditions or lack of maintenance.

KTC failed to warn Spartan or any other contractor of the dangerous decorative lighting system.  KTC gave Spartan, bridge painter, the choice to turn the lights off. Spartan assumed that the decorative lighting met the code as KTC expected them to meet various safety codes. KTC provided Spartan employees with no information regarding the decorative lighting and left Spartan not appreciating the hazardous working conditions.

KTC failed to warn Spartan of dangerous amperage & voltage running through the lighting.  Mr. Campbell, Spartan’s safety expert, compared the decorative lighting circuit to a household dryer.  (Campbell HT p. 142).  N. Hazimihalis went so far as to compare the decorative lighting circuit to wiring on a clock radio or extension cord.  (N. Hazimihalis Depo p 47).

KTC failed to warn Spartan of dangerous amperage & voltage running through the lighting.  Mr. Campbell, Spartan’s safety expert, compared the decorative lighting circuit to a household dryer.  (Campbell HT p. 142).  N. Hazimihalis went so far as to compare the decorative lighting circuit to wiring on a clock radio or extension cord.  (N. Hazimihalis Depo p 47).

KTC failed to warn Spartan of dangerous amperage & voltage running through the lighting.  Mr. Campbell, Spartan’s safety expert, compared the decorative lighting circuit to a household dryer.  (Campbell HT p. 142).  N. Hazimihalis went so far as to compare the decorative lighting circuit to wiring on a clock radio or extension cord.  (N. Hazimihalis Depo p 47).

The KTC Construction Manual requires KTC employees, including the Defendants in this case, to report, monitor, and suspend work practices that place contractor employees in danger. 

KTC failed to warn Spartan of dangerous amperage & voltage running through the lighting.  Mr. Campbell, Spartan’s safety expert, compared the decorative lighting circuit to a household dryer.  (Campbell HT p. 142).  N. Hazimihalis went so far as to compare the decorative lighting circuit to wiring on a clock radio or extension cord.  (N. Hazimihalis Depo p 47).

The KTC Construction Manual requires KTC employees, including the Defendants in this case, to report, monitor, and suspend work practices that place contractor employees in danger. 

The KTC Construction Manual requires KTC employees, including the Defendants in this case, to report, monitor, and suspend work practices that place contractor employees in danger. 

KTC should have insisted that the decorative lighting be turned off before work was started.  Instead they allowed Spartan to work and failed to warn Spartan that the electrical wiring was not protected or guarded. Spartan management and their safety consultant described the insulation as the "plastic wrapping", "PVC wrap", "PVC insulation".  (Dovas Depo p. 10; N. Hazimihalis HT p. 87; Campbell HT p. 113-114). 

Mr. Pfeiffer explained that the decorative lighting contained “two energized conductors and they're 480 volts” and the “ground conductor, which would be 240 volts.”   (Pfeiffer HT p. 158).  Spartan clearly failed to appreciate the obvious hazards of the high voltage electricity that surrounded their workers and implement safe work practices.

Fault cannot be apportioned to Spartan Contracting.

Spartan is an immune dismissed party, not a settling party. The Kentucky Supreme Court explains in Owens Corning Fiberglass Corp. v. Parrish , that the jury “instructions should not have permitted the jury to allocate fault to a nonsettling, nonparty.” Id at 472, footnote 5, citing to KRS 411.182; Baker v. Webb, 883 S.W.2d 898 (1994). KRS 411.182 allows apportionment of liability between settling and nonsettling defendants, and does not mention apportionment to parties who were dismissed. See Jenkins v. Best, 250 S.W.3d 680, 686 (Ky. App. 2007).


DAMAGES

ECONOMIC AND VOCATIONAL LOSS

Nett Gonzalez had high annual wages as a bridge painter.  In 2007 he made $92,000; in 2011 he made $99,000; in 2012 he made $128,000.  William Baldwin, Ph.D. has prepared a report  analyzing earning capacity loss using a valid, accepted scientific method. His report has been provided to the Defendants.  His wage loss calculations range from $2,122,411 to $2,674,455.

Loss of Consortium

Nett Gonzalez was a young, legal immigrant who came to the United States shortly after high school.  He and Veronica were high school sweethearts and married young. Their first daughter, K.L., arrived in October 1999. Their second daughter, K.I., arrived less than a year later in October 2000. V. Gonzalez, their third daughter, was born 14 months later in December 2001.  Their fourth child, N.B., was born in April 2010. Each one of the Gonzalez children has a consortium claim. 

This brief video contains important damages information. Please turn sound on. 

Nett realized he could better reach the "American dream" and obtain a better life for himself and his family as a naturalized U.S. citizen.  Nett worked long hard hours at a dangerous job, on top of and below bridges, but spent all of his free time with his family.

Unlike many immigrants, Nett’s pay for this dangerous job allowed his family to live well, not just paying housing and food bills, but saving and pre-paying their mortgage.  Nett’s life revolved around determination, hard work, and hope that his children would live financially better than he did, as a child.

Veronica explains Nett had only partially realized his American dream by 2013.  In January 2013 Nett completed the application process for his citizenship test. Soon afterwards Nett received a letter for a test appointment, April 2013.  Nett took off some extra time from Spartan to study just before his scheduled examination. When Nett completed the test, he was told that he passed and was given another appointment for the swearing-in ceremony.

When Nett left the Owensboro work site on May 13, 2013, it was to become a US citizen on May 14.  Veronica described him as proud and excited.  After the ceremony they had a family party and took time to complete other paperwork that reflected his new status and his new shortened name. Nett returned to work on Friday, May 17, 2013.  When Veronica spoke to him the next day he still was excited and celebrating his citizenship. Nett also had plans of starting his own painting business - now that he had his citizenship.

When Veronica is asked how she is doing, she usually starts talking about her children. Veronica sees her children struggle with the loss of their dad. Veronica explained that she could not be overwhelmed with her own grief but for a few days. No time for tears, Veronica had to support her children and to keep the family moving toward the American dream. Veronica’s American dream remains home cooked meals, school projects, music lessons, martial arts classes, and college educations.   It's not an easy task as all four react differently with the loss of their dad.

Other Damages

The Plaintiffs have incurred medical expenses of $4,468.42. Funeral expenses are $46,989.00.  Plaintiff will also present a claim for pain and suffering.  The Complaint also has plead punitive damages. 

CONCLUSION

Plaintiffs look forward to attending the settlement conference in good faith to resolve this case.  Ms. Gonzalez will be present in person for the conference. Counsel have made arrangements for an interpreter. 

If any party has questions prior to the conference, please feel free to contact the undersigned. 

Matthew J. Schad