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Burns - Industrial Accident Demand Letter

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Industrial Accident

Demand Letter

This is a demand letter from an actual case. The names of all parties have been changed.

Re: Cause No: 00-0000-X; Hunter v. Forosuka LightIndustries (USA), Inc. et al.; In the 900h Judicial District Court of Dovers County, Texas

Gentlemen:

I. SETTLEMENT DEMAND

We have reviewed all of the information presently available in the captioned cause in order to evaluate this case for settlement purposes in conjunction with our proposed mediated settlement conference on January 4, 2000.

While discovery has not been undertaken in this case, we are thoroughly familiar with the facts as they bear on the issue of liability. We are confident that we have an accurate evaluation of the liability aspects of the case, based on the OSHA findings (Exh. D), our client's personal knowledge of both the facts and the technology, and our own extensive review and investigation of the case. There is no doubt that this is a clear case of liability on the part of each of the Forosukas.

Harry Hunter's physical pain, mental anguish, physical disability, disfigurement, medical expenses, wage loss, and damage to wage-earning capacity will never end during his lifetime. However, we have succeeded in freezing them at a moment in time so that we can get an accurate evaluation of the nature and extent of the injuries, the diagnosis, the prognosis, and past and future medical expenses. We have provided you with all relevant medical records, tests, and reports. These records provide a clear picture of Harry Hunter's care, treatment and rehabilitation efforts which, combined with the medical diagnosis and prognosis, enable us to accurately evaluate the case for settlement purposes.

Based upon the following review of the liability and damages aspects of this case, we are offering to settle all claims arising out of this tragedy for the cash sum of Ten Million Dollars ($10,000,000.00) or a combination of cash and a structured settlement of equal present value. Our opinion is predicated upon the following factors:

II. FACTUAL SYNOPSIS

At approximately noon on December 13, 1999, Harry Hunter was at the ProfitInc plant in Sunset, Texas, to inspect a bulk flow transfer unit (cooler) which was owned and operated by ProfitInc. The product cooler pit (pit) where the inspection by Hunter was to be made was a Class I hazardous location and a permit-required confined space.

Unknown to Hunter as he entered the pit, prior actions by ProfitInc in misusing the cooler had made the pit extrahazardous. ProfitInc unduly increased the hazard level in the pit in January 1999, when they negligently misused cooler A, by improperly loading it with moist material rather than dry iron oxide (carbide).

The moist material clogged vital ventilation systems, clogged space between the cooling plate coils, and clogged the inside surface of the bottom cone, creating a hazardous condition known as "rat-holing" inside the cooler. As Hunter entered the pit these hazards had not been adequately cleaned, repaired or retested by ProfitInc and the "rat-holing" hazard which was created in January 1999 still existed. The continued existence on March 3, 1999, of the extrahazardous condition of "rat-holing" was a major hazard which ultimately led to the severe injuries to Hunter.

In allowing this extrahazardous condition to continue to exist eleven months after it was created and known, ProfitInc had failed in the duties owed to business invitees such as Hunter to avoid the creation of known hazards, to eliminate those hazards which were known, and to guard against or warn of those hazards which could not be eliminated. Hunter was unaware that ProfitInc had failed him in each of these duties.

Disaster struck Hunter when five events created by ProfitInc coincided:

ProfitInc's "rat-holing" hazard provided an open pathway for pressurized flammable gasses to escape into the atmosphere;
the Azuma and the Everlasting valves were opened;
the discharge weigh belt and conveyor were running;
the inflow of product from the reactor was closed; and
the undiluted gas flow through the "rat-hole" emerged into the atmosphere where it spontaneously ignited, with the resulting conflagration which severely burned Hunter.

Hunter entered the pit accompanied by Gary Lydes, a ProfitInc employee, and Mark Evans, owner of Metal Releasings, Inc. As Hunter was taking spot temperature measurements of the outside of cooler A, fire erupted through the open side panel of the weigh belt enclosure, placing Hunter in immediate jeopardy. When flames exploded into the pit, Hunter immediately looked for an emergency shut off valve with which to stop the fire. Due to the defective design by Forosuka, there was no emergency shut-off valve in the pit.

The pressurized highly flammable gas was freely flowing through the "rat-hole" which ProfitInc had created in the cooling coils and was bursting into flames as it exited the cone and mixed with oxygen in the pit. The absence of an emergency shut off system in the product cooler pit allowed the pressurized flammable gas to increase its free flow through the "rat-hole" and to feed the flames in the pit.

Both the side panel and the end panel of the weigh belt enclosure had been removed and flames were surging from both openings. Hunter was trapped between the two surging flames and since ProfitInc and Forosuka had provided no means to either shut off the gas or extinguish the fire, Hunter was forced to run through the fire which was exploding across the only available exit passage.

As Hunter ran through the fire he tripped and fell down nine steps and was knocked unconscious, resulting in a cerebral concussion. When he regained cognizance, Hunter realized, to his horror, that due to the failure of ProfitInc to provide him with fire-protective clothing, he was completely engulfed in flames, his clothing was burning and his skin was on fire. In fact, he was receiving severe burns over 78% of the skin surface of his body. When he tried to stand he found that he was too weak and disoriented and he was confronted with traversing a steep ramp in order to get out of the fiery pit. Hunter looked, in vain, for help from the ProfitInc employee who was supposed to be overseeing the safety of the three men in the pit, but there was no help.

Finally, Hunter was forced to crawl for his life, while the flesh on his hands and knees was cooking. As he painstakingly crawled up the ramp, the pain in every fiber of his body screamed at him that he was still on fire. By the time he crawled to the top of the ramp, he had been burned over 78% of his body and was experiencing incalculable pain from the searing of his flesh.

He finally extricated himself, unassisted, from the fiery pit and was transported by car to a hospital. There he began the long, painful and anguished journey to achieve as much recovery of his body and the pieces of his life as the negligence of the Forosukas had left possible for him. Today, Harry continues his daily battle to recover and to achieve the best he can with what the Forosukas have left him of his life.

III. PARTIES

A. PLAINTIFF - Harry Hunter

Plaintiff, Harry Hunter, age 52, is a design engineer who was trained in Australia and was employed with his own company in Canada at the time of the tragic events which underlie this lawsuit. Harry's design engineering company, WidePine Inc., is wholly owned by him and was his principal source of income prior to the injuries. He is now unemployed and unemployable due to the nature and extent of the injuries and their sequelae.

Harry has been married to Charlott Hunter for 30 years and they are the proud parents of two daughters and grandparents of a grandson and a granddaughter.

In addition to his work as a design engineer, which Harry has always enjoyed, he was also an avid swimmer and golfer. However, Harry's true passion was his woodworking which was both a pleasure and a source of income to him. He maintained a fully equipped woodworking shop at his home and made a very high quality line of wood furniture. Like most true craftsmen, Harry always hated to sell his furniture after he put so much work into it. However, he had the capability to make a living in the furniture business and always planned to do so when he retired from engineering. Harry no longer has the capability to do the woodworking due to the inability to use his hands and due to the problems which he endures as a result of the head injury. Additionally, he can no longer cycle due to lack of strength and the inability to spend time in the sun. Golf is out of the question also. This tragic accident has robbed Harry of his vocation, his avocation and his favorite pastimes.

B. PLAINTIFF - Charlott Hunter

Charlott Hunter is a 50-year-old Registered Nurse. This has been very fortunate for Harry since he is in constant need of her nursing services. Charlott assists Harry daily and but for her nursing skills, Harry would have required home care nursing services for a considerable time after the accident.

Charlott always enjoyed playing golf with Harry. She is active in gardening and in home crafts but she finds that she has little or no time for hobbies since she has to spend so much time caring for Harry.

IV. LIABILITY

A. ORDINARY NEGLIGENCE

1. Negligence of Forosuka Light Industries (USA), Inc.

negligently failing to design the safety system in the product cooler pit to include an emergency shut off system which could be operated in the pit to close the Everlasting valve and stop the fire;
negligently failing to design the weight gauges of the load cells to automatically engage the Everlasting valve if the product in the cooler fell below safe levels.
negligently failing to provide a fire detection system to automatically close the cooler discharge valves, in the event of a fire at the cooler outlet/weigh belt conveyor;
negligently failing to design a fail-safe system to prevent the Cyclone Flow Seal system being opened or operated when the main product inlet to the cooler is closed;
negligently failing to design a fail-safe system to automatically close the cooler discharge valves when the product level in the cooler falls below the safe operating level, and to retain these valves closed until the product level regains the safe operating level within the cooler;
negligently failing to design the pressure indicator gauges so as to automatically close the Everlasting valve when the pressure reached a dangerous level at the bottom of the cone;
negligently failing to design the pressure gauges to automatically close the Everlasting and/or the Cyclone Flow Seal valve when the pressure (at the outlet) in the cooler reached the danger level;
negligently failing to utilize the pressure indicators as a warning device to warn either the personnel in the control room or the workers in the product cooler pit that the pressure above the level of the Azuma valve had built to a dangerous level;
negligently redesigning the cooler system to allow the product level in the cooler to become so low as to permit hazardous process gas to flow into the product cooler pit and spontaneously ignite;
negligently making design modifications to the cooler systems to allow process gasses to bypass major areas of the gas resistance circuit, permitting process gas to escape and ignite; and
negligently making design modifications in the original cooling system which resulted in the escape of process gasses into the atmosphere causing the ensuing fire

2. Negligence of ProfitInc Steel Corporation

creating a hazard by negligently processing moist material through product cooler A which resulted in clogging of the cooler coils and the formation of the hazardous "rat hole" defect inside cooler A;
negligently failing to adequately clean the cooling coils and internal conical bottom in cooler A after clogging them with moist material and creating the "rat-hole" defect;
negligently putting cooler A back in use despite the known existence of the hazardous condition of "rat-holing"inside the cooler and without correcting the defect;
negligently reducing the product level in cooler A by closing the reactor input and permitting hazardous process gas to flow through the "rat-hole" defect into the pit and spontaneously ignite;
negligently opening the Cyclone Flow Seal valve when there was insufficient product in the Cyclone and the cooler to prevent the flow and ignition of hazardous process gas through the "rat-hole" defect into the pit;
negligently opening the Cyclone Flow Seal, Azuma and Everlasting valves and allowing the complete expulsion of product from the Cyclone when the feed from the reactor was closed, thereby permitting the hazardous flow of process gas through the "rat-hole" defect into the product cooler pit where spontaneous ignition occurred;
negligently failing to guard against a known hazard by providing a method of operating the Everlasting valve from the pit which would have allowed those persons trapped in the pit to stop the fire;
negligently failing to guard against a known hazard by providing fireproof Nomex clothing to Harry Hunter for protection in the product cooler pit;
negligently leaving the end panel off of the cooler A weigh belt conveyer which allowed the fire to escape in such a manner as to block safe egress from the pit;
negligently failing to have an overseer outside of the pit to assist in the protection of those in the restricted product cooler pit area;
negligently failing to guard against a known hazard by establishing and implementing safety procedures, including safe routes of egress from the pit, which would protect persons trapped in the pit in the event of a fire;
negligently failing to guard against and warn against a known hazard by instructing all persons who were granted access to the pit as to safety measures to be taken in the event of a fire in the pit; and
negligently violating ProfitInc Safe Work Procedure # 7.5.4 and # 7.7 by failing to reevaluate the significant and potentially hazardous changes in conditions which could result from the opening of the Azuma valve. The regulations require that after the issuance of the original access permit to the pit, such actions which would bring about a change in conditions require immediate permit revocation, hazard evaluation and new permit issuance prior to implementation of such changes. This was not done and the failure to do so was negligence.