A jury’s determinations in a case brought by a contractor who suffered severe carbon monoxide poisoning working at the U.S. Steel plant in Gary were affirmed Wednesday by the Indiana Court of Appeals.
Roberto Hernandez appealed the jury’s determination that U.S. Steel was 15 percent to blame in his poisoning and therefore was ordered to pay $698,668 of total damages of more than $4.65 million. The court also rejected as moot a cross-appeal from worker’s compensation carrier Zurich North America.
In Robert Fechtman, as Guardian of the Estate of Roberto Hernandez v. United States Steel Corporation, Zurich North America, 45A04-1209-CT-474, Hernandez argued that the trial court erred by declining to provide a tendered jury instruction regarding strict liability for the conduct of an abnormally dangerous activity.
Hernadez was injured when he was working in an area where a dust-catcher from a blast furnace was emptied, releasing a large amount of carbon monoxide. The court noted that U.S. Steel followed its safety procedures, including repeated notice over the public address system announcing the dust catcher was about to be dumped.
Hernandez’s contract employer, Roger & Sons, is a nonparty to this suit, and the jury found it 80 percent liable for Hernandez’s injuries, and Hernandez 5 percent liable.
“Viewing all of these factors in conjunction, it is clear that there is a certain degree of risk involved in dumping the dust catcher, and the harm that results from carbon monoxide exposure can be great. But through the exercise of reasonable care, the risk can be minimized if not wholly eliminated,” Judge Paul Mathias wrote for the panel.
“Indeed, were it not for the negligence of Hernandez’s employer, who was found to be eighty percent at fault for Hernandez’s injuries, he would not have been, unbeknownst to U.S. Steel, in an area where he could have been exposed to the gas when the dust catcher was dumped.”