Facebook
Fark
Digg
Reddit
Stumble
Debra Koehler-Fergen, with attorney George Bochanis, says in her lawsuit that Boyd Gaming is responsible for the death of her son, Travis Koehler. Bochanis says he will argue the manhole incident that killed Koehler was “an intentional and purposeful act.”
Tuesday, Dec. 16, 2008 | 2 a.m.
On the rear window of Debra Koehler-Fergen's car is a memorial to her son, Travis Koehler.
Sun Topics
Sun Archives
- State tells FedOSHA to back off (9-25-2008)
- Orleans accident survivor cheats death once more (8-29-2008)
- Feds second-guess state OSHA (8-26-2008)
- State deal in deaths at Orleans questioned (7-15-2008)
The parents of one of two maintenance workers who died last year after entering a toxic manhole at the Orleans filed a wrongful-death lawsuit Friday seeking damages against Orleans owner Boyd Gaming.
Workplace accident lawsuits against Nevada employers are extremely difficult for workers and workers’ families to win. That’s because state courts have held that workers’ compensation laws bar employees from holding employers responsible for workplace injuries and fatalities unless they can prove that the employer intentionally caused the act.
But an attorney for Debra Koehler-Fergen and Robert Koehler, parents of Orleans victim Travis Koehler, intends to argue that the deadly Orleans incident qualifies under that interpretation. He filed the complaint with Nevada District Court.
“This is different because it was by definition an intentional and purposeful act,” attorney George Bochanis said in an interview at his office Monday.
The deaths occurred on Feb. 2, 2007, after maintenance worker Richard Luzier entered a manhole to fix a pipe and was overcome by toxic fumes. When workers Travis Koehler and then David Snow entered to save him, all three fell unconscious.
Luzier and Koehler died. Snow was in critical condition before recovering.
A Nevada Occupational Safety and Health Administration inspector originally found that Boyd had “willfully” disobeyed safety laws, a rare finding that means the company knew what it was doing was dangerous and a violation of safety laws, but did it anyway.
Boyd had been warned repeatedly about the danger of not having a policy to deal with the confined spaces of manholes, but had taken no corrective action, the inspector discovered.
But the agency downgraded the citations to “serious” violations in a last-minute and highly unusual settlement that involved top state political appointees in a process that is usually confined to regulators.
The OSHA inspector on the case quit his job in protest.
Don Barker, a former health and safety manager at Boyd who testified the company was aware of the safety problems but refused to fix them, also left his company in protest.
Boyd spokesman Rob Stillwell said Monday the company could not comment on pending litigation. In the past, Stillwell has called the incident a “horrific tragedy” and said the company would work hard to prevent another accident. Under the settlement deal worked out with OSHA, Boyd is revamping its safety policies and procedures.
After an investigation into Nevada OSHA’s conduct, the federal Labor Department said Nevada OSHA could have upheld the “willful” violations and asked Nevada OSHA to change some of its policies. Nevada OSHA responded that it had done nothing wrong and would not make any changes.
Bochanis will seek to prove that Koehler’s supervisors ordered him into the manhole knowing it was dangerous — and will ask the court to consider this an intentional act rather than merely gross negligence. The OSHA inspection report states that witnesses said the supervisors screamed at Koehler to go in after Luzier and then for Snow to go in after Koehler and Luzier.
But the supervisors told OSHA the men jumped in on their own.
Under state law, Bochanis will not be able to use the OSHA report in court. But he can find and use the same evidence and witnesses.
Koehler-Fergen, Koehler’s mother, has spent the nearly two years since her son’s death seeking to hold both Boyd and Nevada OSHA accountable for what she says is their responsibility for the tragedy.
She met with several lawyers before she found one willing to take her case.
“I just want to find justice for Travis,” Fergen said in an interview at her attorney’s office Monday. “I want to make sure this never happens again.”
Workers’ compensation attorneys say they almost always turn away workers and families seeking to sue employers for workplace injuries because those cases are so difficult under current case law.
In 2000, the Nevada Supreme Court held that workers at Circus Circus in Reno who had been repeatedly exposed to toxic chemicals could not sue their employer even though workers had told their supervisors the chemicals were making them sick.
“The relevant inquiry is not the degree of negligence or even depravity on the part of the employer, but the more narrow question of whether the specific action that injured the employee was an act intended to cause injury to the employee,” the court wrote.
The language sets a standard of proof that is almost impossible to meet, said Ray Badger, a Carson City workers’ compensation attorney.
“You would need fabulous facts of total safety disregard, and even with that you would have a great chance of losing,” Badger said. “Absent an assault, how can we prove that they intended to injure someone?”
But Bochanis points to a 1990 Nevada Supreme Court decision in a case he argued that found that an employee at a pub could bring a lawsuit against a boss she said intentionally closed a refrigerator door on her arm.
“To us, the Orleans case may be worse,” Bochanis said. “You know this workplace is dangerous and deadly and you were told about it. Yet, you sent three people down there.
“We’re not claiming they were murderers, but what they did was knowingly dangerous and had to be intentional.”
"Boyd had been warned repeatedly about the danger of not having a policy to deal with the confined spaces of manholes, but had taken no corrective action, the inspector discovered." By who, had Boyd been warned. By Don Barker, the Health and Safety Manager. If so, why was Don busy warning them with memos and whatever. Why was he not busy warning and educating the Engineers so they would know better than to improperly enter an PRCS. Warning the Engineers about the dangers of a Permit Required Confined Space would have been free and should not have needed approval. Don wasn't doing his job but to cover his rear end he is blaming Boyd Exec's who he had not educated in the dangers of PRCS. He was the one the company had hired to enforce safety rules, it was his job to educate everyone from the Exec's to the Engineers. He didn't quit his job in protest, he quit his job because he knew he hadn't done his job. Being a Safety Manager means you know the OSHA regulations, you have done a job hazard analysis and you inform employees of the hazards of their job. Did Mr. Barker get approval from the Exec's to have a Bloodborne Pathogen program? No he didn't. So why did he need approval to implement a PRCS warning. He didn't need to set up a program he could have just talked to the Engineering Chief and all Engineers one on and one and said, we don't enter these spaces because they are dangerous.
Safety:
Let's see, AGAIN you seem to speak as someone who THINKS they know what they are talking about but you DO NOT. Mr. Barker DID IN FACT warn the supervisor Chief and assistant Chief engineer about the dangers and NOT to allow anyone to go near the confined spaces just days before they intentionally sent those men into a known dangerous confined space. Why not read the OSHA report for yourself and maybe you will become a little more knowledgable about this situation so that what you're saying doesn't sound so ignorant to those who do know the truth?
Mr. Barker wasn't waiting around for permission from Boyd altho he wasn't getting much cooperation from them. Again, read the report and educate yourself before saying anything more.
To Safety - you must work for Boyd Gaming - I have seen the OSHA report and the Memos from Don Barker and several others on Boyd gaming letterhead warning the Department heads at the Orleans regarding the Confined space on property, where a face to face (or as you put it "one on one") the Chief stated that 'no Orleans employee ever goes into Confined Spaces' in this case 'the Grease pits' and again during a site specific safety inspection, these fact's where confirmed by Boyd gaming Upper Management to NV OSHA during the OHSA investigation. Take note Upper Management did nothing to allow enforcment of these safety policies. In fact there is verbage actually preventing internal inspections and enforcement.
I have seen the email (also in the OSHA report)from Don Barker just mere days before this case, outlining a draft for Confined Space Program and training - again obviously not taken seriously by the Engineering supervisors or Upper Management. Also I have read in the report that Boyd gaming had a 'culture that did not support active safety programs', and this included other Boyd Gaming Properties.
While you may know safety, you do not know what you are talking about in this case. And, if you want to go further as in all Casinos there are security cameras at that location and NOBODY not Management, not Security not anybody else with the clearance to have a security monitor in their office stopped the work that day when the lives of two men could have been saved.
I have heard that the entire OSHA report is posted on a website, www.myspace.com/boycottboydgaming. Since you continue to respond to articles pertaining to this case, you may want to read it. I would suggest you read it from the perspective of the Luzier, Koehler, or Snow family, maybe then you might get a very small idea of what they live with daily. Maybe then you will be a better 'Safety' Person and protect the employees instead of defending the Employers.
Debi,
This made my day!!! Thank God!
Kelly
Check out myspace.com/boycottboydgaming for the full OSHA report and to view photos pertaining to this needless tragedy
or
www.boycottboydgaming.com
and in the words of someone I admire greatly...
LET JUSTICE PREVAIL!!!!
Read this -in the words of yogi berra it's deju vu all over again
http://www.cdc.gov/eLCOSH/docs/d0100/d00...
I can barely contain my excitement just knowing that Debi has filed suit against Boyd Gaming! Who did in fact willingly put her son Travis in harms way in the end costing him his life. And oh what I wouldn't give to be a fly on the wall watching as this case proceeds. Debi's fight to find justice for her son has inspired so many who know all too well how difficult her battle for justice has been. And we are all pulling for her. As what Debi has managed to accomplish is rarely accomplished by anyone. And I for one cant wait to see what comes of this unlike (SAFETY) who's previous comments have led me to agree with (STEPDAD's) Comments that SAFETY must work for Boyd Gaming as safety's comments appear to base themselves around Boyd Gaming's ongoing attempts to cover up the truth by confusing public opinion through the dimwitted statements of people like SAFETY.
We're so proud of you Deb!
Mary Vivenzi
United Support & Memorial
For Workplace Fatalities
&
The Weekly Toll
FYI:
Boyd Gaming was also the second corporation to ever be nominated for and this years recipient of
the 2008 Corporate Killers Award
(Watch video here)
http://www.youtube.com/watch?v=6wrVngaFt...
And since I failed to do so earlier...
Thank You Alexandra for once again proving that your journalistic ability and dedication are second to none.
Mary Vivenzi
United Support & Memorial
For Workplace Fatalities
&
The Weekly Toll