The death of a 3-year-old boy yesterday in Rochester, NY was a tragic accident; one that has both potential workers' compensation and tort liabilities for the owner of the business where he died. Authorities say he fell into an unsecured grease trap behind a Tim Horton's Restaurant. He had been taken to the business by his mother, who was working a shift at the time.
The mother is said to have called the police shortly before 11AM, which was described as “moments” after her son wandered away and disappeared.
An unidentified person found the boy within minutes of that call and removed him from the grease pit. CPR was administered, but he did not survive. He was pronounced dead at a local hospital.
A grease pit is an underground tank that acts in a similar fashion to a septic tank. Grease from the restaurants sewage line settles in the tank and is prevented from transferring into the city sewer system. They usually are covered by heavy iron or locked manhole covers. This one was apparently just covered with what was described as a “light plastic cover.” It is believed to have given way when the 3-year-old stepped on it.
Clearly the restaurant owners are facing a huge potential liability here. Another entity that might be at risk is the company contracted to routinely pump out that grease trap. If they had an employee exchange a safer heavy cover for an easier to manage plastic one, they will be facing trouble. There may be criminal negligence concerns, and the potential for lawsuits would be strong.
But this story also has the potential to generate claims in the workers' comp arena as well. The clue for me was the statement in the news that read, “Reporters watched as officers tried to comfort distraught Tim Horton employees at the scene.”
That observation reminds us that employees who witness a tragic accident in their workplace can be injured as well, even when they were not physically involved in the event. It all hinges, of course, on the structure of the laws in place where the accident occurred, but in New York it seems that mental trauma claims might be possible.
While New York has limitations to mental only injury, or “mental-mental” claims, the laws would not seem to rule out mental trauma in this case. New York's Article 1, Section2, Definitions, states:
7. "Injury" and "personal injury" mean only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom. The terms "injury" and "personal injury" shall not include an injury which is solely mental and is based on work related stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer. (Emphasis added)
Mental only claims in New York cannot be a result of legitimate and legal employer actions related to direction and development but can be accepted if the result of a traumatic event in the workplace that is outside the normal course and scope of employment. These claims are quite difficult for plaintiffs to prove but they can prevail. The injured worker must show that the stress they experienced is greater than that which other similarly situated workers might have experienced in a normal work day or environment.
The trouble for this restaurant, and their insurer, is that watching a deceased 3-year-old being pulled from a filthy grease trap may just meet that burden. It is entirely possible that they will be facing legal challenges on multiple fronts from this sad and heartbreaking event.
I am not suggesting who should or should not be on the hook for this, but clearly many mistakes were made. It is probably not advisable to let your employees bring their young children to any workplace, let alone one with the number of dangerous features that a restaurant kitchen can present.
After all, the easiest workplace related death of a toddler is the one that never happens. Keeping kids out of that environment should be job one for any employer.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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