Demolition contractor in Killen plant collapse blames 'act of God,' denies liability

Expert: Plaintiffs face 'high hurdle' in court
Posted at 11:20 AM, Jan 28, 2022

CINCINNATI — The Michigan-based demolition company facing two lawsuits over the December 2020 collapse of the Killen power plant in Adams County has denied liability for the fatal mishap, arguing in court documents that an “act of God” caused the death of two men and life-altering injuries of another.

In its first public comments since the lawsuits were filed, Adamo Demolition Co. said those harmed by the collapse were participating in “an inherently and unavoidably dangerous activity.” Adamo also argued claims against it are “barred by the exclusive remedies and protections of Ohio’s workers’ compensation system,” which generally prohibits lawsuits over workplace injuries.

Adamo’s court filing is the latest legal skirmish over the Adams County tragedy in which two men – Jamie Fitzgerald and Doug Gray – lost their lives and Travis Miller lost his legs.

In May, 2021, the Occupational Safety & Health Administration proposed fines totaling $181,724 against Adamo and $12,288 against SCM Engineer Demolition Inc., an explosive demolition subcontractor that also worked on the Killen site. Both companies are contesting those citations.

In a Dec. 6 lawsuit, Miller alleged Adamo and SCM took “extraordinary steps to weaken and de-stabilize” the structure so they could avoid the time and expense of a controlled demolition using explosives.

Fitzgerald’s family made similar allegations in a wrongful death lawsuit filed Dec. 9.

“Deliberately endangering workers for financial gain is actionable,” said the complaint filed by Phoebe Adkins, administratrix of Fitzgerald’s estate. “Justice demands that the responsible and liable parties assume legal and financial responsibility.”

Both lawsuits seek compensatory and punitive damages in excess of $25,000. Both alleged the companies’ behavior was intentional and deliberate, which could be a key element in avoiding a dismissal of the claims due to workers’ compensation rules.

That’s because Ohio law, revised in 2005, requires injured workers to prove “that an employer acts with deliberate intent” in order to collect damages outside the workers comp system.

“It’s a pretty high hurdle to say that demolition contractor deliberately intended to cause death or injury to its employees,” said Thomas Yocum, a Newport attorney who represents contractors involved in construction-related legal disputes. “That’s the high hurdle that the plaintiff has in this case.”

Yocum said claims against contractors have declined in Ohio since the statute was altered and courts have clarified what it takes to proceed with these kind of claims, known as intentional torts.

“In recent years, the court and the Ohio legislature have established a more stringent standard,” Yocum said. “My impression is the number of filings has probably declined as a result of the higher standard.”

In Greater Cincinnati, at least two companies were accused of acting with deliberate intent in workplace injuries. One of those cases was voluntarily dismissed by four workers who sued over the collapse of a Cincinnati’s downtown casino floor during construction in 2012. In a second case, Kokosing Construction Company Inc. reached a settlement before the court ruled on whether the family of Brandon Carl could pursue an intentional tort claim for damages related to the Hopple Street bridge collapse in 2015.

The attorneys who represented the Carl family in the Hopple Street bridge collapse case are now representing Travis Miller in the Killen case.

In addition to filing its answer to two pending lawsuits in Adams County, Adamo Demolition also got the cases transferred to federal court. Plaintiff attorneys are now trying to reverse that decision so the cases can be litigated in Adams County.

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