Suit in Orleans worker deaths allowed to proceed

Friday, May 1, 2009 | 7:01 p.m.

Construction Deaths

Suit names Boyd in Orleans death (12-16-08)

A judge Friday issued an order that could allow family members of workers who died two years ago at the Orleans to continue with a lawsuit against the hotel-casino's owner, Boyd Gaming.

The lawsuit was brought by Debi Fergen, the mother of Travis Koehler, and Seth Andrew Luzier and Gabriel Thomas Luzier, the sons of Richard Luzier. Both Koehler and Luzier died February 2, 2007 when they entered a toxic manhole at the Orleans Hotel. A third worker, David Snow, was seriously injured in the accident.

Fergen and the Luziers had separately claimed that Boyd was responsible for wrongful death because, they allege, Boyd supervisors ordered the employees to enter the manhole even after knowing it could be fatal.

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.

In its motion to dismiss the suits and subsequent hearing last Monday, Boyd attorneys said the Luziers and Fergen did not show they could meet that standard, set by the 2000 Supreme Court case Conway vs. Circus Circus.

But in his decision, District Judge Mark Denton said that although he was granting the motion to dismiss the complaint, he was allowing the plaintiffs' lawyers to amend their original complaint to include the language from the Conway lawsuit: "deliberate and specific intent to injure."

If the lawyers file that amendment, the court can go forward with determining whether there are "genuine factual issues," Denton said.

The judge pointed out that it appeared there could be enough differences between the Conway case and the Boyd case to allow an opening for Fergen and Luzier to proceed.

Attorneys involved said they believed the Boyd case could help test the limits of the Conway decision, which has often been assumed to bar nearly every attempt to bring a lawsuit involving injury in the workplace.

Most workplace injury complaints are quickly dismissed, said George Bochanis, Fergen's attorney. The fact that this appears headed to the next phase is significant, he said.

"This shows that you can file an intentional tort case in workers' compensation and survive a motion to dismiss," Bochanis said. Boyd spokesman Rob Stillwell said the company did not want to comment on an ongoing dispute.

Discussion: 6 comments so far…

By Snooper

5/2/09 at 12:16 a.m.

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Debi Fergen,

You are my hero, and I know that your son Travis Koehler would be very proud of you for standing up to Boyd Gaming - the company that is totally responsible for the death of your son...beyond a shadow of a doubt! I hope that you get the justice that your family, the Luzier family and the Snow family deserve. Boyd Gaming's Supervisors knew that your son, Richard Luzier & David Snow were neither trained nor were they properly equipped to go into the manhole...they were sent to a certain death. I know first hand that your motivation in doing this is pure, I know that your tears are real & heartfelt, and I know that this has nothing to do with the money it has everything to do with you honoring your son Travis's memory. You are making a difference, and setting a precedence...Casinos are not above the law and they need to be held responsible for their illegal malicious actions. Boyd Gaming totally disregarded the health & safety of their employees - they have no excuse for what they did. I am hoping that you get tens of millions of dollars out of Boyd Gaming, what they took from you is irreplaceable.

Harrah's Entertainment, Inc. is next as they exposed all of their construction workers, many regular employees and even Guests of their hotels to ASBESTOS during the course of their many illegal remodels, which started back in the early 1990's.

Harrah's knew that their people were working with and disturbing the ASBESTOS during the remodels, and they knew that ASBESTOS is a known carcinogenic. There are State & Federal Laws that Harrah's knowingly and willfully broke just so they could expose all of us to ASBESTOS. I want to recognize the following individuals & agencies for exposing us intentionally & willfully to asbestos...not once but again & again:

Gary Loveman, Kirk England, Tom Jenkin, Don Marrandino, Debi Fetzner, Dyana Reed, Greg Pushard, Mike Nasby, Tom Adams, Mike Whitehead, Leon Vermillion, George Kirkwood, Robert Bruna, Shane Jacobs, John Bare, Ron Cozart - Local 501 Operating Engineers, the Teamsters Union, Nevada State OSHA, and of course I would be remiss to leave out the rest of Harrah's Board of Directors - you should all be ashamed for what you have done, but you are not! This was willful on Harrah's part...they intentionally by-passed the Clark County Building Department's Permit System, intentionally failed to properly abate the ASBESTOS which resulted in massive asbestos exposure to a very large number of people, and Harrah's did this to save money & time to protect their precious bottom line. We will be able to prove that it was a "deliberate and specific intent to injure," by Harrah's. When the story comes out Harrah's is going to have nowhere to hide, and they will get exactly what they deserve...and certainly don't forget the fact that Harrah's left behind public fire safety traps in every room that they touched during the course of their remodeling projects...every single room!
By fremmasmind

5/2/09 at 6:29 a.m.

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Before the Orleans allows anyone to enter into a confined space area, the air must be tested for low oxigen or toxic fumes. A ventilator system, blower, must be used to keep fresh air in the confined area. Once testing of air is proven to be safe, and ventilator is running workers two at a time, buddy system, may enter with a two-way-radio that has direct contact with someone outside of the confined area. It seems to me none of these safeguards were used. These men did not enter into the confined space on their own. Their supervisor told them to enter. A supervisor is part of management. Who then is responsible?
By Snooper

5/2/09 at 8:08 a.m.

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fremmasmind:

You are absolutely 100% correct, and there is no doubt who the responsible party is - BOYD GAMING! There was no testing done for either low oxygen or toxic fumes. There was no ventilator system or blower in place, thus no fresh air in the confined area. Richard Luzier went in first...by himself...Travis Koehler only entered after Mr. Luzier was overcome by the fumes, and he was ordered to do so by Boyd Gaming's Management team present at the time. No safeguards in place, no protective gear, no training, a licensed contractor was used in the past to do the work, an internal memo stating that none of the Orleans men were qualified to do the work...end result - two dead men Travis Koehler & Richard Luzier and a near miss on a third David Snow! Debi, go get them, they have the blood of your son all over their hands...Boyd Gaming is 100% responsible.
By SafetyNow

5/5/09 at 9:08 a.m.

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Wow~ Now this is some great news! When I think on how many chances Debi was given to give up on this ever happening all of which she so bravely passed up and fought on jumping over every hurdle put in front of her. It just fills me with pride. I can't wait to talk to her myself.
But before I do let me just ask the sun's readers to imagine how upsetting this unwelcome news must be for Boyd gaming. And tell me it doesn't just put a spring in your step a song in your heart and a smile on your face. I know I'm smiling!
Mary
By bjmoor1

5/5/09 at 6:41 p.m.

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Losing a child is one of the worst things a mother could endure, but to lose one needlessly, on someone elses CARELESS actions, tears the heart apart even more.
So to those who think they can by-pass saftey standards and the law and turn the cheek and deny it, watch out. A new standard may soon be set thanks to Debi, I just want my sister in law to know how very PROUD I AM OF HER! She is pursuing what I know is the hardest battle of her life, and one that has the most meaning to her, which is to have my nephews death not be in vain. Debi, Travis is watching over you and giving you the strength to prevail, AND WE ARE BEHIND YOU 100%
By kellysnow

5/5/09 at 9:28 p.m.

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WOOOOOOOOHOOOOOOOOOOOOO!!!!!!!!!!!!!!!!

Way to go Deb!!! Let justice prevail and Boycott Boyd Gaming!!!!!