What Do You Think?
Survivors of Texas employees who die at work can sometimes sue employers for wrongful death. But, no matter how tragic or dramatic the death, they’ll have one especially big hurdle in the way, the Workers’ Compensation Act’s exclusive remedy provision.
A case involving a grain bin cleaner who was sucked under corn and killed illustrates what it might take to clear that hurdle.
In that case, the employee entered a running grain bin to recover a grain vac hose and was engulfed by corn. The plaintiff, who was the mother of the decedent’s child, sued for wrongful death. She contended the company failed to enforce its safety policies. The company carried workers’ compensation insurance.
The decedent had been trained on the employer’s policies designed to protect employees who might enter into a grain bin. For example, the decedent was required to, but allegedly did not, obtain a grain bin entry permit. He was also required to, but reportedly failed to, utilize safety equipment and to ensure the bin was stopped and the auger locked.
To prevail in a wrongful death suit against an employer that has workers’ compensation coverage, the decedent’s legal representative must prove that the employer was grossly negligent. Gross negligence means an act or omission:
- Which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
- Of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds.
Could the plaintiff sue for wrongful death?
A. No. The employee entered the bin of his own accord.
B. Yes. Given the extreme degree of risk, the company should have been closely supervising its employees and stopped the decedent from entering the bin without safety tools in place.
If you selected A, you agreed with the court in Fernandez v. Heartland Corn, Corp., No. 07-24-00362-CV (Tex. Ct. App. 01/06/26).
Interested in how failing to follow safety measures might affect a workers’ compensation claim? Head to the compliance summaries on Simply Research.
The court acknowledged that no safety measures were used when he entered the bin. He did not properly use safety tools or obtain a permit. However, there was no evidence of gross negligence on the employer’s part. The evidence showed that the decedent had been trained on the safety policies.
Further, there was no indication that any manager told the decedent to enter the bin. Instead, it appeared that the decedent decided on his own to enter and that he did so without authorization and in contravention of safety rules. Under those circumstances, there was no sign of indifference on the part of the employer that might have amounted to gross negligence.
