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The father of a worker who was killed while working on a wind tower cannot sue the employer for negligence, as there are no facts to show the company was negligent, despite that it had been cited by the U.S. Occupational Safety and Health Administration for unsafe conditions that “could result in serious death,” a federal district court in Oklahoma ruled Tuesday.
Christian Diette was killed while removing bolts from flanges on a section of one of the wind towers operated by Dallas-based Trinity Structural Towers Inc., now known as Arcosa Wind Towers Inc., which had bolted two tower sections together and placed them on three separate wheel supports, the source of OSHA’s later citations regarding “recognized hazards” in the workplace, according to documents in Dan Diette v. Arcosa Wind Towers Inc., Trinity Industries Inc., and Arcosa Inc., filed in the United States District Court of the Northern District of Oklahoma in Tulsa, Oklahoma.
Based on a claim of negligence, the worker’s father Dan Diette filed a suit on several grounds, asking for a total of $150,000, according to documents.
Arcosa asked for a dismissal on several grounds, including the exclusive remedy defense, and that there is no proof that the employer acted intentionally, according to documents.
A district judge, ruling in favor of Arcosa, argued that while Oklahoma’s workers compensation code does feature an exception to exclusive remedy in regard to tort litigation, the judge cited case law that found “mere allegations of intentional conduct” insufficient for a negligence suit to proceed. “(P)laintiff has pleaded no facts demonstrating that the former employer acted intentionally to cause Christian Diette's death. Rather, plaintiffs allegations are mere assertions that defendants acted intentionally,” the judge wrote.
“The Court finds that there is no set of facts in the petition that would support plaintiff's claim that defendants intended to cause Christian Diette's injury and death. Therefore, the petition shall be dismissed without prejudice,” the ruling states.
The attorneys involved could not immediately be reached for comment.
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