• Height – 4 stories
• Location - Chamberlain Lofts, Ames, Iowa
• Event - Veishea
• 2006 Benjamin Peterson died from a similar fall at this complex
• Drinking may have been involved.
• This isn't rocket science.

Is there something about the design that increases the risk of a fall? Should design changes be added, such as steel bars or ornamental screens? Come on landlord this isn't rocket science. If it's a foreseeable risk the landlord has an obligation to act to protect the residents and guests. Granted you'd probably never think it will happen twice, but now that it did, will it be three strikes and you're out? 

Balcony falls aren’t all that uncommon - in other words they are foreseeable. In this apartment building I'd say they are really foreseeable. Here are a few news articles, but let's start off with a video of a young toddler that falls and lives.

• Two fatal Virginia Beach balcony falls, June 2011
• A two-year-old fell from a balcony
• Virginia - Montgomery construction worker died after falling 90 feet from a high rise balcony.
• Chicago, Man critically hurt after falling from balcony at Chicago Theatre, October 2011
• Colorado Springs fall March 2012
• Oceanfront balcony fall
• Romanian parliament in Bucharest, the man purposefully jumped. Video of the incident.
• Pittsburg, fall 20 foot fall during fight, April 2012
• March 2012, Colorado, alcohol involved.
• Broomfield, Colorado, Pretty Lights New Year’s Eve show
• Wisconsin man died from balcony fall, March 2012
• Long Beach, CA. Fleeing the courtroom man falls from balcony and dies, January 2012
• 21-Year-Old Man Dies After Fall in Ames, KCCI
• KCCI, Video clip

Gee, I wonder what the apartment owners could do to solve this problem that doesn't seem to go away? Let's see it's a college town, with student celebrations, that happen every year and where young adults will be drinking. Hmmm..... could this happen again? Better yet, how can we prevent it from happening again. Let's check out a craftsman from Colorado who has the answer.

Question:

1. A duty.

2. A breach of the duty.

3. Damages.

4. Your damages need to be proximately caused by the negligence of the "tortfeasor" the wrongdoer.

In your case you are simply missing 3 and 4. You have no damages and therefore no damages were proximately caused by the wrongdoer. Your personal injury is what the law refers to as de minimis. Lay people would use this definition and lawyers this one. Frankly it was what the McDonald's marketing machine was all about but they were completely wrong and fooled most people into believing the sky was falling.

De minimis is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor ("The praetor does not concern himself with trifles") or de minimis non curat lex ("The law does not concern itself with trifles").[1][2]

In risk assessment it refers to a level of risk that is too small to be concerned with. Some refer to this as a "virtually safe" level.[3]

An abbreviated form of the Latin Maxim de minimis non curat lex, "the law cares not for small things." A legal doctrine by which a court refuses to consider trifling matters.

In a lawsuit, a court applies the de minimis doctrine to avoid the resolution of trivial matters that are not worthy of judicial scrutiny. Its application sometimes results in the dismissal of an action, particularly when the only redress sought is for a nominal sum, such as one dollar. Appellate courts also use the de minimis doctrine when appropriate.

But the personal injury aside you did also mention a wage loss being caused by your having a tough time keeping a job. It didn’t take me 30 years of practice to know it’s going to be extremely difficult to prove you’re not being able to find any truck driving job is somehow proximately caused by this one little accident. There must be more than you’re telling me; either that or you aren’t trying hard enough to find work.

Make sense? Now get back to work.

• In the first case out of Salt Lake City a worker identified as Kelton Lee (55) a construction worker who was lifting a heavy piece of pipe when his legs gave out and the pipe struck him in the head. Although he regained consciousness he later died of the head injuries. Read more here from the Vernal Express.
• Next we go to South Dakota where an article discusses the number of deaths in that state. It’s interesting that all workers killed in South Dakota last year were men; men must be taking more jobs with higher risk of injury. Here is a quote from that article. “All but one of those killed in South Dakota last year were men. The Labor Statistics bureau groups farming with forestry, fishing and hunting, and that sector had the highest number of worker deaths, 14. The construction industry followed with seven.
• Every year since 2003, driving associated with work has been as dangerous as or more dangerous than fatal accidents involving equipment or objects and falls. Among fatalities last year, 16 were caused by transportation accidents, including nine highway deaths and seven nonhighway accidents.
• Ten deaths occurred in accidents involving objects and equipment and five were caused by falls.
• South Dakota closely tracks a national trend regarding transportation fatalities. Nationwide, 21 percent of the 4,547 people killed on the job last year died in highway accidents. The nine highway deaths in South Dakota represents 25 percent of the total work-related deaths.
• Nationwide last year, 11 percent of those killed at work were murdered. South Dakota had no such cases.”
• You can read that article from the Argus Leader here. 

Many workers, many accidents, all different locations but several things in common to all – risk, not paying enough attention to safety, material handling, moving machinery, trucks-cars all moving with drivers paying little attention to their surroundings and highway construction crews who are sitting ducks with cell phoned drivers paying more attention to the call than the road. 

Question: How is negligence determined in personal injury cases?  

Does negligence have to be established in order to collect damages in any personal injury case?

Statutes and Black Letter Law: The statutory law states that everyone must stop at a stop sign. If you run the stop sign you are negligent.

Common Law: If you behave in such a way as to increase the risk of injury to another knowing injury is likely then you can be found to have been negligent.

Contract: General contractors agree by way of a written agreement (the contract) to supervise the construction site and to make sure every subcontractor is abiding by OSHA's rules and regulations. If the GC knows a sub is not following OSHA rules/regs or fails to monitor whether the subs are adhering to OSHA rules they can be found to be negligent.

Criminal Law: Criminal law says if I walk up and punch you in the nose I'm guilty of assault and battery. If I walk up to one guy but hit another due to my being too drunk to make a straight punch, then I'm probably negligent. That's a standard that can be applied to civil law to find you acted negligently.

Professional Standards: Professionals are held to a standard created and recognized by other professionals and the associations that govern their conduct.

These are not all the ways standards are found in the civil law, but it will give you some idea of how standards are determined to exist and therefore formulate the basis for determining negligent conduct. 

For a list of locations see below.

Traffic Camera Proves A Reliable Witness In Crashes, AP provided by KCCI-Channel 8

• Iowa Department of Transportation – Des Moines Area Traffic Speedmap and Cameras Link
• Iowa Traffic Webcams from Leonards Worlds
• Traffic Cameras by State – USA Russia Style link.
• Iowa Webcams link.
• Des Moines area links.
• Iowa Red Light Cameras Map link. 

I’ve written and litigated extensively on construction worker accidents in Iowa and around the country. They are factually complex because construction workers are hard workers working in a dangerous place. The construction site is an unforgiving environment where OSHA rules apply but many times are not followed. General contractors are under tremendous pressure to keep the work moving on schedule.

Some workers show up with a hangover putting others at risk for serious injury (loss of limbs, etc) or worse yet, death. Some workers don't use the safety equipment provided while others are using faulty safety equipment. Everyone has a tendency to want to blame something other than the people making the decisions to proceed in light of known risks. Today's story is out of Florida. In this instance the young man, just 30-years-old, walked between a forklift delivering roof tiles at a home and a semi-truck, where he was crushed to death. The statement is made the driver of the forklift with a bad mirror and bad back-up warning beeper isn't at fault. Really?

Here is the part that I read and made me shake my head. The person talking on the news story states it’s not the driver’s fault it was the fault of the broken mirror and inoperable backup warning beeper. That’s simply not true. The law doesn’t place blame on faulty equipment; it’s placed on the people who chose to use or fail to maintain faulty equipment. So in this case the Christian Flores construction site accident is not a freak accident. The driver is responsible for the equipment he drives, not the guy killed and certainly not the mirror and beeper. The owner or company that places faulty equipment into use on a construction site is legally responsible, not the construction worker that is killed.

Who comes up with this stuff? The NTRA? Give me a break. Here is the link to the news story. 

Family remembers forklift accident victim
NBC2 News
A 30-year-old man was killed when he was crushed between a forklift and a semi-truck on Wednesday. Naples Police say Christian Flores was delivering roof tiles at the home of Joan and Frank Szot when he walked in between the moving forklift and a truck ...

Before talking to the insurance adjuster or defense attorney or the case mismanager remember this from I Claudius, don't touch the figs.

The premise held by most clients is that this system of law is fair. They'll say they want only to be treated fairly. When representing themselves they make the assumption that when defense lawyers talk to you they will be fair. Well I'm here to tell you, you had better not trust in being treated fairly. I mean exactly that and it has nothing to do with whether or not the defense lawyer or the insurance company is dishonest. They don’t have to be “honest” and they aren’t trying to be “fair”. Fact is they are hoping you aren’t smart enough to ask the right questions so they don’t have to not answer you. You think I’m kidding? Hell no. I’m not and I can prove I’m right. Here let me prove it to you.

Defense work has nothing to do with treating people fairly. If it did you could come up with the name of at least one defense lawyer who has said in the past, "I don't think you're asking for enough, can I pay you more?" Or, "Did you know you're entitled under the law to be paid more for your damages?” Go ahead find me one insurance company representative that has said that in the entire history of insurance. Go ahead, think real hard; I can wait, go ahead and think harder.

Umnnn dee dum, dee-dum... Have you remembered one? No? I didn't think so. I've not heard anything like that in 30 years.

Updated: This is too funny. I had a link to an insurance company's YouTube ad and they actually took it down so I could not tag them with how deceptive it is. Can you believe it? Yeah that's what they do. They advertise when they need more money, lie to you the premium payer and then when we lawyers point it out they take down what they said to erase the lie. That's reality folks, that's the insurance industry. 

In other words the defense lawyer's job is to treat you in a way to take advantage of your ignorance of the law as well as your mistakes. Frankly because this isn't about fairness their job is to treat you unfairly. Ethically they can, do and must treat you unfairly as most people think about the idea of fairness.

Fairness dictates honestly and with openness and candor. But ethics require the lawyer to maintain confidences provided by the client. I as your lawyer have to be candid and open with my client and if you're my client I act ethically. But the insurance company's lawyer isn't your lawyer and you the injured person aren't his client. So candor isn't going to be happening between the two of you. That's not the hand of a friend reaching out to shake your hand; the handshake being a sign of friendship, but this one is not one from a friend. Never confuse friendliness with friendship. The two are not one and the same.

The defense attorney or the insurance company representatives are like the slithering snake that delivers the poison being slipped into the wine goblet from which the injured drink.  Now you understand the legal concept of "fairness".

American Iron Workers – Falling won’t kill you; killing is in landing.

http://www.youtube.com/watch?v=jdPd1hlWe0k

http://www.youtube.com/watch?v=2KlA77j6xAc

http://www.youtube.com/watch?v=Ksq2FKvkm0Y

http://www.youtube.com/watch?v=pa0SFtmS--c

http://www.youtube.com/watch?v=M-QFGC0wi7c

http://www.youtube.com/watch?v=mZJLrUa41Tw

A few years ago I blogged about Iowa news reports blaming Old Man Winter for causing accidents; which by-the-way on behalf of my client we emphatically deny he can cause an accident!

Back in the day I thought we’d won this case, but apparently not, because once again my client is being libeled. Today I’m here, again to defend OMW. Let us say, we categorically deny the charges and on his behalf I say, “He didn’t do it! He's not the perp!” Lately, every news source seems to be taking cheap shots at my client while needlessly blaming him for every accident that occurs. You wouldn’t do that if he were a woman, now would you? It’s totally outrageous. I’m seeing multiple articles in the Des Moines Register and on KCCI News Center 8 blaming OMW for causing car and truck accidents. Semi’s on the interstate running pelmel into cars, ladies spinning out on the state highways and men crashing on streets and avenues within the city limits. Teens ending up rolling over and in dozens of fender benders: all blamed on OMW. It’s slanderous, libelous, calumnious and downright defamatory; and on behalf of OMW I demand a retraction!

Ice and snow can’t cause an accident and I can prove it!

Out to my mailbox I go around 6:00 a.m. to retrieve the Wall Street Journal and the Des Moines Register. As I’m heading down the driveway I notice there is ice on the concrete and all over the cars parked here for Thanksgiving. In the back of my mind I think, “Great now I’m going to get to see an accident caused by ice and snow!” So I stop mid-stream, turn and watch the cars covered in this shiny, slippery, icy material. And I watch, and watch and watch some more. But nothing happens! No accidents between the cars or with the garage door or even the mailbox. Nothing crashes and no fenders are bent.

Why? If weather causes accidents then why isn’t one happening in my driveway?

Perhaps we need to add a driver! A driver that drives too fast for the conditions might spice things up. So once again it’s been proven that weather alone can’t cause a car, truck or semi-truck accident.

Ladies and gentlemen of the jury, my client, OMW was nothing more than a bystander. Who better to argue the point than Mr. Jackie Chiles. We state for the record that Old Man Winter is nothing more than a bystander.

And on behalf of my client Old Man Winter I demand a retraction, and I rest my case. And don't even think of picking on Mother Nature!

Here are the three calumniatory articles from the news that once again blame my client, the weather.

Notice the safety equipment is named “fall-arrest” or “fall-protection”, not fall prevention. That’s  because falls are inevitable with working at heights. The idea is to limit the falls and to arrest the worker who does fall.

Read reporter Brinton’s article, here is a quote from the investigative report.

In a written statement, O’Haver said he was working on the roof of the law school assisting Fosdick saw a glass frame.

“I was keeping a eye on him [Fosdick] because I had a bad feeling he wasn’t tied off,” O’Haver wrote.

O’Haver said when Fosdick finished what he was cutting, “he lost his balance…and fell to the right making the ladder lean to the right.”

“It teetered right then back,” O’Haver wrote. “Tommy fell backwards hitting the ladder twisting Tommy around.”

O’Haver said when Fosdick started to fall he “grabbed his belt buckle trying to straighten him out in the process,” but had to let Fosdick go.

“I lost feeling in my arm and had to let go so I didn’t fall off the roof,” he wrote. “He [Fosdick] loosened his grip in the process.”

Remember, it's fall-arrest gear. The assumption is, sooner or later you will fall. Like falling in love, sooner or later everyone does it. So all you construction workers need to understand that on this planet, with gravity, falls do happen and no worker can avoid the consequences when it does occur.

See also Worker at Iowa's law school falls and dies: Fall Protection?

Even without all the facts what’s the likely cause of this death on the job?

Today's feature video is from Russia. I did like Russia, it's an interesting country and people although I would never want to live there. Listen as you read because today's post is another example of the more we rush the father behind we get.  As personal injury lawyers we continuously see the worse. So listening to beautiful music is one way to escape. Listen as you read; and I should mention, the name is Russian, and should be spelled VIAgra or Via Gra and it means a cappella.

Rear warning devices are a necessary piece of safety equipment and if the audible part of the backing up warning isn’t working then the truck shouldn’t leave the yard. In that case we had several violations of the OSHA rules and the industry standards. Not only didn’t the device work but the driver couldn’t see to the rear and rather than get a spotter or stop, look and listen he just went ahead and backed up at a high rate of speed. He was moving semi-trailers in a yard with a type of small truck cab made especially for that type of work. I can’t recall the name of the truck, but I’ll check later and update this writing.

Bottom line in this case is that OSHA and IOSH will investigate and my guess is they will center on rear backup warning devices, what the driver could or could not see and whether a spotter was required in finding a safe or unsafe workplace.

For addtional reading on accidents from backing up see these posts:

Truck Accident Prevention: Garbage truck backing over woman may be ...

Nov 17, 2008 ... If the driver is intending to back up and can't see behind they simply need to .... Labels: 29 CFR 1926.601, audible, backing up, device, ...
www.lombardilaw.com/.../truck-accident-prevention-garbage-truck-backing-over-woman-may-be-an-accident-but-it-is-preventa.cfm - Cached - Similar - 3 visits - 12/21/09

Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck (Ankeny ... www.lombardilaw.com/blog/ - Cached - Similar

Illinois Highway Construction Worker Backed Over | Lombardi Law Firm

Sep 18, 2009 ... He was run over by a dump truck backing up. The dump truck driver is 75 years old. This is a situation I've blogged on several times on The ...
www.lombardilaw.com/.../illinois-highway-construction-worker-backed-over.cfm - Cached

Intentional acts that cause injury are not covered by casualty ...

Apr 12, 2010 ... Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck ...
www.lombardilaw.com/.../intentional-acts-that-cause-injury-are-not-covered-by-casualty-insurance.cfm - Cached

Another reason why kids shouldn't play in the street. | Lombardi ...

Mar 1, 2010 ... Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck ...
www.lombardilaw.com/.../another-reason-why-kids-shouldnt-play-in-the-street.cfm - Cached

Pedestrian is killed and driver of Hummer is not charged.Why ...

Jun 3, 2010 ... Hummer owners can purchase back-up alarms and monitors for the H3. The official Hummer site describes the design as a truck. ...
www.lombardilaw.com/.../pedestrian-is-killed-and-driver-of-hummer-is-not-chargedwhy.cfm - Cached

Construction Accidents - Backing up and rear warning devices ...

Nov 17, 2008 ... At Lombardi Law we make it a point to blog about the issues that affect those who are effected by accidents. Call us for a FREE evaluation ...
www.lombardilaw.com/.../construction-accidents-backing-up-and-rear-warning-devices.cfm - Cached

Did texting while driving kill this Iowa teen? | Lombardi Law Firm

Jul 15, 2010 ... It's not clear whether the truck was backing up at the time of the ... Her car then burst into flames, came back onto I-380 and burned up. ...
www.lombardilaw.com/.../did-texting-while-driving-kill-this-iowa-teen.cfm - Cached

Pedestrian Collisions Causing Injury and Death | Lombardi Law Firm

Feb 22, 2009 ... Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck ... www.lombardilaw.com/.../pedestrian-collisions-causing-injury-and-death.cfm - Cached - Similar

"Most of us aren’t the slick stereotypical lawyer the politicians describe. Real life pi lawyers are more akin to gumshoe investigators hard working, harder nosed with hearts hardened by thousands of real life sad stories with no good ending."

Examination Question #1: Why does OSHA have a standard for fall protection?

It’s ironic that a worker who died at the Univ. of Iowa Law School may not have been wearing fall protection. After all fall protection is what the law requires. So why isn’t anyone talking about the facts surrounding his death? The ultimate answer is an explanation as to why he died and whether or not it was preventable. Yes, we know he is dead, but why? Was he wearing fall protection gear? Was a lanyard available? If one was provided and he wasn’t wearing it, why wasn’t he wearing one? Why was he being allowed to work without fall protection gear?  Is fall arrest gear required?  

Iron Worker Falls 19 Stories - Due to high winds, the welding cable came into direct contact with the steel ... Workers should ensure that their fall protective equipment is in ... The men had been working above this second welding machine the day before but chose that ... Also, welding leads must be protected from physical damage while in use. ... www.public-health.uiowa.edu/face/.../REPORT-017.html

Examination Question #2: Why do they refer to it as fall arrest? (Perhaps, because falls on a construction site are inevitable and predictable.)

Classes in labor law, workers’ compensation and administrative law at the law school now have a concrete example to work with and to research. This is what lawyers do after law school. We work with life, death and serious injuries that cause families more than textbook losses. Wives and children are left behind to fend for themselves when construction workers die on the job. Like the death itself, hunger is real to a ten-year-old that lies awake at night crying themselves to sleep after being told their father won’t ever come home. This is real life, this is the tough part of practicing law – this is the ultimate responsibility for a personal injury lawyer.

Roofer Falls Through Sheet Metal - The University of Iowa College ... - A 20-year-old sheet metal worker, part of a crew constructing a new metal ... The man was not wearing any fall-protective equipment and suffered fatal head and neck ... Falling off a purlin, if only 8 inches high, would significantly ... www.public-health.uiowa.edu/face/reports/report-026.htm

Examination Question #3: How would you tell the widow, her husband’s death was preventable?

Most of us aren’t the slick stereotypical lawyer the politicians describe. Real life pi lawyers are more akin to gumshoe investigators hard working, harder nosed with hearts hardened by thousands of real life sad stories with no good ending. From across wooden leather topped desks stare wetted eyes looking to the lawyer for how to pay the grocery bill. To them the lawyer is their safety net. There are no fast cars, faster women or slick shiny suits; only a box of Kleenex the lawyer tosses their way. That’s what lawyering is all about for me; Kleenexes and putting food on the table. To date, what are the facts we know about Mr. Fosdick who died?

NIOSH FACE Program - Iowa Case Report 03IA021 - Company-built personnel platforms on extended boom forklifts must comply with ANSI ... operator can actuate to shift the frame back to level before a lift is initiated. ... metal catwalk about 20 feet below, where his co-worker was located. .... In this case, the victim was not wearing any type of fall protection, ... www.cdc.gov/niosh/face/stateface/ia/03ia021.html

Examination Question #4: How do you feed a widow and four orphans after the breadwinner has died?

Facts: A 49-year-old worker fell and died last Wednesday while working on the U of I Boyd Law Building in Iowa City. That’s about it. That’s what we know, but really is that all there is to know? No. What happened that allowed Tom Fosdick, a 49-year-old man from Cedar Rapids to fall to his death. The general contractor (GC) on the job is noted to be Miron Construction of Neenah, Wisconsin. Fosdick was working for Swanson Glass, a subcontractor on the exterior renovation project at the law school. Sources tell me they took Mr. Fosdick to the auditorium apparently trying to save his life. The law school was in session. The students were in classes. After work resumed workers on a lift were heard to say the equipment hadn’t been working right and no one bothered to take the time to fix it. Why not? What equipment? Who knew? Who, if anyone continued to allow it to be used? Who was responsible for running the job site? Who was in charge of safety? Who, who, who…

Section 5(a)(1) of the OSH Act, often referred to as the General Duty Clause, requires employers to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees". Section 5(a)(2) requires employers to "comply with occupational safety and health standards promulgated under this Act".

This story is all about fall protection and why it wasn’t being used. In a story by the Iowa Press-Citizen Miron’s director of risk management noted the company has completed 6,000 projects since September 1995. Great, 6000 projects, that’s nice but what about the fall protection equipment?  No one seems to be talking about the facts, like how and why the man was killed. What was he doing? How high was he? Was he wearing a lanyard for protection if he should fall? Was he more than 15 feet off the ground? Law students should know that it’s not what they are willing to talk about publicly that is important; more important is what they don’t talk about.

Note: Twenty-four states, Puerto Rico and the Virgin Islands have OSHA-approved State Plans and have adopted their own standards and enforcement policies. For the most part, these States adopt standards that are identical to Federal OSHA. However, some States have adopted different standards applicable to this topic or may have different enforcement policies.

Examination Question #5: Who do you sue and where do you file the suit when a construction worker dies while on the job?

I’ve written previously about fall protection for construction or building and ground maintenance workers. See Construction Site Accidents section on the Lombardi Law Firm website. At the LLF site if you do a search within the site for “fall protection” you’ll see there are over 1,900 results to choose from.

On March 26, 2010 it’s noted the top ten fines from OSHA include fall protection sitting in the number 3 spot and probably rising. Let's Look At The Top Ten OSHA Fines. Here are the details after which a safety video is in order. If the GC isn’t going to enforce rules then construction workers need to protect themselves. It’s that simply. Going to a work on a construction site is one thing, but coming home is quite another. It reminds me of mountain climbing and what they say about the summit. Getting to the top means you’re only half-way home.

Scope. This section covers powered platform installations permanently dedicated to interior or exterior building maintenance of a specific structure or group of structures. This section does not apply to suspended scaffolds (swinging scaffolds) used to service buildings on a temporary basis and covered under subpart D of this part, nor to suspended scaffolds used for construction work and covered under subpart L of 29 CFR part 1926. Building maintenance includes, but is not limited to, such tasks as window cleaning, caulking, metal polishing and reglazing.

Examination Question #6: What agency will investigate this accident, how and when can you get the entire investigative file?

Workers need to know their safety equipment and to push aside supervisors who ignore safety rules. Having the right safety equipment is and how to use it correctly could save your life. If you aren’t schooled in the how’s and why’s then visit the Miller Fall Protection on the Miller site and read or contact the sales rep and let him visit with you about the right fall protection equipment. The solutions can be uniquely tailored to your own situation. They have permanent and temporary solutions for roof top work. If the GC and your supervisor want to act like knuckleheads, it doesn’t mean you have to join them. You can also do a general search on Google for fall protection. Here are some statistics from the U.S. Department of Labor.

A preliminary total of 4,340 fatal work injuries were recorded in the United States in 2009, down from a final count of 5,214 fatal work injuries in 2008.  The 2009 total represents the smallest annual preliminary total since the Census of Fatal Occupational Injuries (CFOI) program was first conducted in 1992. 

Based on this preliminary count, the rate of fatal work injury for U.S. workers in 2009 was 3.3 per 100,000 full-time equivalent (FTE) workers, down from a final rate of 3.7 in 2008.  Counts and rates are likely to increase with the release of final 2009 CFOI results in April 2011.  Over the last 2 years, increases in the published counts based on information received after the publication of preliminary results have averaged 156 fatalities per year or about 3 percent of the revised totals.    

…

In 2008, the Bureau of Labor Statistics (BLS) reported that fatal work injuries involving falls decreased 20 percent in 2008 after a sharp increase in 2007. The 847 fatal falls in 2007 was the series high. Fatal falls to a lower level, which accounted for 85 percent of all falls, were down 23 percent in 2008. Fatal falls from roofs were down 26 percent and falls from ladders decreased by 14 percent. The number of fatal falls on same level (to a floor or walkway or against an object) increased slightly in 2008. Identifying fall hazards and deciding how best to protect workers is the first step in reducing or eliminating fall hazards.

Occupational fatalities caused by falls remain a serious public health problem. The US Department of Labor (DOL) lists falls as one of the leading causes of traumatic occupational death, accounting for eight percent of all occupational fatalities from trauma. Any time a worker is at a height of four feet or more, the worker is at risk and needs to be protected. Fall protection must be provided at four feet in general industry, five feet in maritime and six feet in construction. However, regardless of the fall distance, fall protection must be provided when working over dangerous equipment and machinery.

….

While workers in construction incurred the most fatal injuries of any industry in the private sector in 2009, the number of fatalities in construction declined 16 percent in 2009 after a decline of 19 percent in 2008. 

With this decrease, private construction fatalities are down by more than a third since reaching a series high in 2006.  Economic conditions may explain much of this decline with total hours worked having declined 17 percent in construction in 2009, after a decline of 10 percent the year before.  Fatal injuries involving workers in the construction of buildings were down 27 percent from 2008, with most of the decrease occurring in nonresidential building construction (down 44 percent to 55 cases).  Heavy and civil engineering construction was down 12 percent, and the subsector with the largest number of fatal work injuries, specialty trade contractors, had 16 percent fewer fatalities in 2009 than in 2008.

Examination Question #7: Can the widow receive workers’ compensation benefits and also file a third-party lawsuit against the GC?

Examination Question #8: Are there too many lawyers or too many unnecessary deaths and injuries?

Examination Question #9: Why do the rich and powerful argue we have too many lawyers while hiring the best legal help available?

Examination Question #10: If justice isn’t about fairness, what is it about?

Examination Question #11: If there are too many lawsuits why are corporations filing them in record numbers?

Examination Question #12: Where did all that retirement money go after the market crashed? Does money just disappear electronically?

Bonus Examination Question #13: And what about fairness, if we haven’t got even a single dollar to deposit into the Social Security fund, why do we have $3 Billion to spend every month on bombs and bullets?

Are there too many lawyers or too many people with power using law to hide the truth? You be the judge.

Accident details:

• Place of accident: University of Iowa Boyd Law School Building
• Time of Incident: 10:48 a.m., Monday
• Date: august 30, 2010
• Job Site: UI had awarded a $1.5 million contract to Miron for exterior repairs at the Boyd building
• Injured Worker: Tom Fosdick, 49-year-old man from Cedar Rapids, Iowa.
• Investigating Body: Iowa OSHA, by Jens Nissen
• Employer: Swanson Glass, subcontractor
• GC: Miron Construction, Neenah, Wisconsin
• Job duties at time of accident: an exterior window installation.
• Interesting facts: Mr. Fosdick was an All-American diver at Cedar Rapids Kennedy, then joined the Hawkeye Swimming and Diving Team in 1979.

For additional reading,

• OSHA: Contractor had 19 violations, Press-Citizen
• Worker dies from incident at Iowa law building, Gazette Online
• Fall killed worker at University of Iowa project, Action 3 News, CBS
• Fall killed worker at University of Iowa project - KCAU, ContractorSafety.net includes reference to 24 news articles.
• Worker died of a fall at U of I construction, Des Moines Register

Today let's look at job site safety and fall protection for construction site and maintenance workers.

I’ve written extensively about fall protection for construction or building and ground maintenance workers. See Construction Site Accidents section on the Lombardi Law Firm website. At the LLF site if you do a search within the site for “fall protection” you’ll see there are over 1,900 results to choose from. On March 26, 2010 it’s noted the top ten fines from OSHA include fall protection sitting in the number 3 spot and probably rising. Let's Look At The Top Ten OSHA Fines. Here are the details after which a safety video is in order. If the GC isn’t going to enforce rules then construction workers need to protect themselves. It’s that simply. Going to a work on a construction site is one thing, but coming home is quite another. It reminds me of mountain climbing and what they say about the summit. Getting to the top means you’re only half-way home. 

Workers need to know their safety equipment and to push aside supervisors who ignore safety rules. Having the right safety equipment is and how to use it correctly could save your life. If you aren’t schooled in the how’s and why’s then visit the Miller Fall Protection on the Miller site and read or contact the sales rep and let him visit with you about the right fall protection equipment. The solutions can be uniquely tailored to your own situation. They have permanent and temporary solutions for roof top work. If the GC and your supervisor want to act like knuckleheads, it doesn’t mean you have to join them. You can also do a general search on Google for fall protection.

Accident details:

• Place of accident: University of Iowa Boyd Law School Building
• Time of Incident: 10:48 a.m., Monday
• Date: august 30, 2010
• Job Site: UI had awarded a $1.5 million contract to Miron for exterior repairs at the Boyd building
• Injured Worker: Tom Fosdick, 49-year-old man from Cedar Rapids, Iowa.
• Investigating Body: Iowa OSHA, by Jens Nissen
• Employer: Swanson Glass, subcontractor
• GC: Miron Construction out of Neenah, Wisconsin
• Job duties at time of accident: an exterior window installation.

Interesting facts: Mr. Fosdick was an All-American diver at Cedar Rapids Kennedy, then joined the Hawkeye Swimming and Diving Team in 1979.

For additional reading,

• OSHA: Contractor had 19 violations, Press-Citizen
• Worker dies from incident at Iowa law building, Gazette Online
• Fall killed worker at University of Iowa project, Action 3 News, CBS
• Fall killed worker at University of Iowa project - KCAU, ContractorSafety.net includes reference to 24 news articles.

Fall Protection Training Video:

I’ve written about workers, construction workers, interstate highway construction workers and pedestrians all getting run over by a truck on the jobs site that is backing up.  If you’d like to see what’s been previously written follow this link or just check out some of the titles added at the bottom of this post.

Today’s construction site is a highway job site in Rushville, Illinois. The actual roadway where the workers died was U.S. 24 in Schuyler County. The worker was a 53-year-old man named James Brink, the asphalt foreman with Brink Construction. It’s reported by the Hannibal-Courier-Post that the truck that backed into him was a Schuyler County dump truck. It appears from the news article Mr. Brink was knocked to the pavement and was then run over by the rear duals.

1. Was there a back-up alarm on the truck?
2. Was there a working back-up alarm on the truck?
3. Could the driver see Mr. Brink as he was backing up?
4. Either why wasn’t there a spotter or was the spotter in a place where he was not able to see?
5. Was there a spotter that wasn’t paying attention?
6. What was Mr. Brink doing at the exact time he was backed into?
7. How much room was there for the truck and workers at this site?
8. Did this driver have a record of any kind that should have indicated to the county of Schuyler he should not have been driving the dump truck?
9. Was drinking involved with either construction worker?
10. Where were the supervisor and the general contractor at the time of the accident?
11. Were there other accidents at this job site?
12. What was the safety record on this job?
13. Were there safety meetings?
14. What training did the men have on using spotters and back up warning devices.
15. What did OSHA cite and who got cited on this job after the fatality?

There is much to do and I’d suggest all involved talk with a good lawyer to protect their rights, responsibilities and interests.  More information may be available Hannibal Courier Post.

At another site in Fayetteville, Arkansas a stock worker was killed by a forklift. Few details were available but that accident may have some similarities to this one.  He was trapped under the forklift while at the job site. No name or other details were provided. I'm going to include this in the Life-On-Campus category because college students work construction as a summer job and they need to be aware of what this device is and how it's supposed to work.

Des Moines Accident Attorney and Iowa Worker's Comp Lawyer ...

May 19 Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck (Ankeny ...
www.lombardilaw.com/ - Cached - Similar

The Lombardi Law Firm Blog | Lombardi Law Firm

- 12/21/09 - Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck (Ankeny ...
www.lombardilaw.com/blog/ - Cached - Similar

Pedestrian on I-380 is struck and killed | Lombardi Law Firm

Aug 16, 2010 ... Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck ...
www.lombardilaw.com/.../pedestrian-on-i380-is-struck-and-killed20100816.cfm - Cached

Illinois Highway Construction Worker Backed Over | Lombardi Law Firm

Sep 18, 2009 ... He was run over by a dump truck backing up. The dump truck driver is 75 years old. This is a situation I've blogged on several times on The ...
www.lombardilaw.com/.../illinois-highway-construction-worker-backed-over.cfm - Cached

Truck Accident Prevention: Garbage truck backing over woman may be ...

9/18/09 - Nov 17, 2008 ... If the driver is intending to back up and can't see behind they simply need to .... Labels: 29 CFR 1926.601, audible, backing up, device, ...
www.lombardilaw.com/.../truck-accident-prevention-garbage-truck-backing-over-woman-may-be-an-accident-but-it-is-preventa.cfm - Cached - Similar

Pedestrian is killed and driver of Hummer is not charged.Why ...

Jun 3, 2010 ... Hummer owners can purchase back-up alarms and monitors for the H3. The official Hummer site describes the design as a truck. ...
www.lombardilaw.com/.../pedestrian-is-killed-and-driver-of-hummer-is-not-chargedwhy.cfm - Cached

Pedestrian Collisions Causing Injury and Death | Lombardi Law Firm

- Apr 18 - Feb 22, 2009 ... Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck ...
www.lombardilaw.com/.../pedestrian-collisions-causing-injury-and-death.cfm - Cached - Similar

Did texting while driving kill this Iowa teen? | Lombardi Law Firm

Jul 15, 2010 ... It's not clear whether the truck was backing up at the time of the ... Her car then burst into flames, came back onto I-380 and burned up. ...
www.lombardilaw.com/.../did-texting-while-driving-kill-this-iowa-teen.cfm - Cached

Steve Lombardi | Lombardi Law Firm

Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck (Ankeny ...
www.lombardilaw.com/bio/steve-lombardi.cfm - Cached - Similar

Road worker killed in Illinois, Safety is never on break ...

Sep 18, 2009 ... He was run over by a dump truck backing up. The dump truck driver is 75 years old. - 515-222-1110 - 1300 37th Street, Suite 6 West Des ...
www.lombardilaw.com/.../road-worker-killed-in-illinois-safety-is-never-on-break-20090918.cfm - Cached

Directions to Lombardi Law Firm | Lombardi Law Firm

Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck (Ankeny ...
www.lombardilaw.com/directions.cfm - Cached

The Lombardi Law Firm Blog | Lombardi Law Firm

Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck (Ankeny ...
www.lombardilaw.com/blog/?keywordid=37914 - Cached

Video Library | Lombardi Law Firm

Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck (Ankeny ...
www.lombardilaw.com/video/index.cfm - Cached

If a company providing services, in which those services are paid for and terms of service are placed in which the paying parties have signed an agreement to and said company does not deal with violators whom breech these terms of service where everyone is expected to adhere to in a timely fashion. Is said company in breach of contract due to negligence of protecting those very people who agreed to said company's contract?

While we are talking being a lawyer let’s expand this thought and talk about how lawyers make their cases interesting to those who will hear and decide it. Whether judge or jury the structure of your case should be like a mystery novel that leads the fact finder through a tale of suspense. The chapters of the case should lead the jury to be the ones who answer the final question. That final question is one of, Who done it? I call this the Who Done It Case Structure. Because the structure of the case can draw a jury in and keep them awake throughout the questioning of what could otherwise be some pretty boring testimony.

You can control the cadence of the case through use large pigeon-hole charts that get filled in as the trial progresses. What you’re creating is a demonstrative exhibit that organizes complex testimony in real-time right before they eyes of the judge and jury. It allows complex testimony to be assembled out of order but in chart form that is simple to refer to and to understand. Of course you, the lawyer, work out what structure it should be in long before the trial begins. As an example I used such a chart and trial theme in a defamation case against a news organization. The jury was told in the opening statement that we would reconstruct every position in the news room on the night before the defamatory article was published. Through a second information flow chart we would reconstruct how information known to the public is turned into printed news that lands on their doorstep in the morning.  Using this technique the order of witnesses made little difference; in fact I’m of the opinion that taking them out of order was more beneficial because it added to the suspense of the case. The one witness I identified as the offending reporter and editor was called towards the middle of the end of witnesses to allow the jury time to finger him and by the end of the case those witnesses testifying after he did confirmed the juries suspicions.

In the end the lawyer turns into a scribe and the jury the detectives. A $2.4 million verdict, including $1 million punitive was confirmation this technique works. Now don’t ask me what happened on appeal because my blood pressure is high enough as it is. Safe to say I can fully appreciate Lex Hawkins comment that he’s lost more money on appeal than most lawyers make in their careers.

Our point today is reading a John Grisham novel or a Steve Martini novel and then considering how you can turn your case into a “who-done-it” novella can pay off with the jury. I do have a confession though. Personally think Steve writes a better novel than does John, John writes for Hollywood, is predictable and Steve Martini for lawyers. Pick up a copy of Prime Witness, Compelling Evidence or Undue Influence and see if you agree with me.

Now back to the question, but first another cup of coffee.... onward we march.

Insurance Lullaby: Ka-ching, ka-ching, ka-ching! Insurance Executives: Thank you juries! We fooled you again. Remember we're not to blame, it's those trial lawyers! The ones trying to help you! Oops sorry I wasn't supposed to remind you. We're your good neighbor; you know the one's you're in good hands with! Smile! Bigger ka-ching!

Sorry, when it comes to the insurance industry I love being sarcastic. A lady wrote asking me if the insurance adjuster can unilaterally assign her 50% fault for the accident even though she was not ticketed and the other driver received a citation for failing to yield the right-of-way.  The adjuster believes a driver is automatically at fault, no matter what, and he deducts 50% from the property damage. My advice is pretty straightforward and simple. He's trying to delay paying you. Can you say ka-ching?

Today let's talk about the American styled insurance that protects the float by promoting delay. When you're in an accident you need to know how to protect your claim. Because if you don't protect your claim by keeping the facts straight, you allow the adjuster to promote the float through their delaying a fair resolution. You may be honest, but don't be dumb and allow the adjuster to maladjust your case.

A lady wrote to me asking whether the insurance adjuster can just deduct 50% for her fault even though she was not ticketed and the other driver received a citation for failing to yield the right-of-way.  My advice is to the point.

Dear ____________, Thanks for writing to me. If you weren't ticketed (given a citation) then I see no reason why you would be at fault. I'm going to guess that the insurance company’s adjuster is saying that you struck the trailer, meaning you did not have control of the intersection and therefore the other guy had the right-of-way. Your observation that he sped up trying to get control of the intersection becomes that much more important. Coming to an intersection you’re supposed to slow down and assess the traffic situation; not speed up and yell damn the torpedoes.

Everyone has the right to assume the other guy will obey the law.

Stick to your argument that he sped up. He did not have the right of way, he had a duty to yield; instead of slowing down at the intersection he sped up; he was ticketed; you had the right of way, you were not ticketed. You simply have to argue that you are free from fault.

If he won't pay you will have no choice but to hire a lawyer and sue. If your only claim is for property damage less than $5,000.00 then you can sue in small claims court. If the driver or passengers were hurt and sought medical attention then you probably should sue in district court. Have you already told him there was no personal injury? If so I would think the adjuster has accomplished at least half of his goal; to pay you as little as possible.

You may need to hire a lawyer. Good luck.

Steve Lombardi

 Now let's end today with a good laugh. Watch this video of a wedding couple gone wrong. It's a video created for an insurance company.

Related media coverage:

• Caught on Tape: Horses' Rampage at Parade Kills 1, Injures Others - Chicago Tribune
• July 4th Horse Stampede Saddens Iowa - Injury Board Blog Network: St. Cloud, MN

They will loudly proclaim that no one should sue! No way, no how; after all that would be un-American! Wouldn't it?

Well that’s exactly what I’m going to suggest. After all who considers going to a parade to get killed or maimed by a stampede of horses? Hell, no one does. To those who say horses do unexpected things I say, so what, who cares and what difference does it make that a horse acts without reason? The object that acted without control was entered into a parade and within a few feet of people sitting in lawn chairs. And, it was predictable.

Think this is the first time horses have stampeded the crowd at a parade?

Let’s have a parade of pit bulls and other vicious animals we consider part of the American culture. How about a herd of buffalo, wouldn’t they make a cool parade. One thousand stampeding buffalo trampling everything and everyone in sight along hometown America. Or how about sharpshooters with guns that can take out elephants traipsing along the parade route just in case an animal steps out of line; that would work.

You see it doesn’t matter what you and I think is American or un-American. When it’s you that gets trampled and then maimed or your spouse or child killed it’s all about doing what is right by them; and that is what an integral part of the American tapestry is.

Do otherwise and you might as well have your next parade in Red Square.

One killed, 23 injured after spooked horses trample crowd at Bellevue parade, July 4, 2010

UPDATE: One dies after horses' rampage at Iowa July 4 parade - A pair of runaway horses in harness crashed into a Fourth of July parade float and collapsed, ending a rampage that injured nearly two dozen people and killed one, people at the parade said Monday. July 5, 2010

Horses take off, injure 24 people at Bellevue parade - Two runaway horses raced along a Fourth of July parade route in a small Mississippi River town in eastern Iowa on Sunday, trampling children who were in the street picking up candy and injuring 24 people, police said.