Cell Tower (Photo credit: RyanDonahue)
OSHA Investigates After Collapsing Tower Kills Three
February 10, 2014--Harrison County, West Virginia--Three men were killed and others injured after a cell phone tower collapsed in rural Harrison County. The Occupational Safety and Health Administration is investigating the collapse but has not yet released any official findings about the cause of the accident.
Killed in the collapse were Kyle Kirkpatrick, 32, of Hulbert, Oklahoma; Terry Lee Richard, Jr., 27, of Bokoshe, Oklahoma; and Michael Dale Garrett, 28, a Nutter Fort Volunteer Fireman from Clarksburg, West Virginia. Another firefighter was also injured in the crash but survived and has been released from the hospital after being treated for his injuries, as was one of the cell phone tower workers.
"We Don't Know Why"
According to official reports from the accident site, the collapse occurred near noon on Murphy's Run Road near Clarksburg. West Virginia State Police verified that four workers were engaged in working on a cell phone tower. Three of them were about 70 feet off the ground and one was 20 feet off the ground when the tower collapsed. All four of them were pinned in the wreckage. When first responders arrived at the scene, a second cell phone tower next to the first collapsed, resulting in the death of one of the first responders.
The towers are operated by SBA Communications, who subcontracted the work to an independent engineering firm. This firm in turn subcontracted the job to S. and S. Communication's Specialists in Oklahoma, the employer of two of the victims. A spokesperson for SBA Communications noted, "At this time we do not know why the accident occurred."
The federal government has become involved due to the increase in fatalities and injuries at communication tower worksites. According to the U.S. Department of Labor, as of September 2013 there had been 14 incidents involving death or injury of workers. Part of this is due to a sharp increase in the amount of work being done on cell phone towers due to infrastructure upgrades, but some of it may be due to failures to adhere to safety requirements or standards on the part of employers or contractors who work on these towers.
Deliberate Intent Claims
In West Virginia, there is a "Deliberate Intent" statute (W.Va. Code, 23-4-2(d)(2)(ii)) that provides an exception to the immunity from common law tort liability granted to employers under the West Virginia Workers' Compensation Act. This means that in certain situations, conventional legal claims can be filed by workers or their families against employers, in addition to workers' compensation claims. The Heavens Law Firm keeps up with all of the latest case law interpreting "Deliberate Intent" claims. The latest significant case was McComas v. ACF Industries, LLC.
Third Party Claims
If persons or entities other than the workers' employers are identified by OSHA or other agencies as having been responsible for causing and/or contributing to this incident, the families of the men may have conventional third party negligence claims against those persons and/or entities. It is important for people to recognize that when they have a third party claim, they may have to pay a portion of their third party benefits back (subrogation) to a workers' compensation insurance company. At the Heavens Law Firm, we assist our clients in understanding the implications of subrogation and we often negotiate for a reduction in subrogation using all available legal tactics to maximize our clients' net recovery.
Things to Keep in Mind
If you view our videos at www.heavenslaw.com, you will see why evidence preservation is important in these cases. A written request to preserve all evidence, physical, paper and electronic, should be sent to the men's employers and any other person and/or entity that had involvement in this incident. A written request for preservation of all evidence will serve the purpose of discouraging parties from disposing of incriminating evidence. In our experience, when this type of proactive approach is taken, it greatly strengthens the position of people who have been harmed or lost a loved one.
OSHA's Role Should Not Be Exclusive
OSHA will prepare a report in this matter. The OSHA report will identify the causes and contributing factors in this incident. It will serve as a blueprint for identifying the persons and/or entities responsible for the incident. However, in our experience, it is not wise to rely exclusively on OSHA or other government regulatory agencies to protect the rights of workers and their families. That is why we recommend that all people in a situation where they have lost a loved one retain an experienced attorney to assist and guide them.
Unique Experience of Heavens Law Firm in Work Accidents
Chris Heavens is an attorney with over 20 years of litigation experience, beginning working for corporations and insurance companies. Mr. Heavens defended coal companies, gas companies, construction companies and their contractors before he became a plaintiff's attorney. He knows firsthand that the most costly missteps in these situations occur at the beginning of the process. Unfortunately, while the companies, their insurance companies and their attorneys are working immediately to protect their rights, families are grieving and not thinking about legal issues. This fundamental reality is why the Heavens Law Firm encourages people to talk to an experienced attorney immediately.
Source: NBC News, "OSHA Investigating Fatal Cell Tower Collapse in Harrison County, WV," February 9, 2014.