Interesting Result - Work-Comp/Third-Party

Suk 1Mr. Suk, age 61, worked for a delivery company that picked up dry ice from Ontario Ice Company weekly to use in the packaging and shipping of frozen food for its customer. Mr. Suk was assigned to pick up 300 lbs. of dry ice initially but the order was increased to 1,300 lbs. When he arrived at the dry ice company, the dry ice was packaged in 26 50-lb paper bags. Mr. Suk was driving a Ford Transit van. He and an employee of the dry ice company loaded the 26 bags in the back of the compact van which had no barrier separating the cargo area from the driver/passenger area. Mr. Suk drove 3.5 miles towards his employer's facility. He was found an hour later slumped over the steering wheel with the engine still running. The driver's window was partially down and the ventilation system was on 2/4. Mr. Suk died at the scene from asphyxiation and carbon dioxide toxicity. A third-party case was filed against the supplier of the dry ice.

Dry ice sublimates into a gaseous state consisting of carbon dioxide. In elevated levels, it is toxic even with adequate oxygen present. The Hazmat Team measured the oxygen level inside the enclosed van and found that it was approximately 17%, whereas the normal oxygen level is 21%. When the oxygen level is below 19.5%, it can cause asphyxia and death. Through sublimation, the carbon dioxide gas replaces oxygen and asphyxiation is likely to occur first before carbon dioxide toxicity takes over.

The employee of the dry ice company who helped to load the bags had no training regarding the risks and dangers of placing a large quantity of dry ice in a small enclosed vehicle behind the exposed driver. The president of the dry ice company testified at his deposition that if he had been there and seen 1,300 lbs. of dry ice being loaded into this vehicle, he would have stopped it and prevented the vehicle from leaving the facility.

Dry IceThe dry ice company blamed the decedent driver for not fully rolling down both windows and not having the ventilation system on 4/4. It blamed his employer for not sending a bobtail truck or pickup truck to pick up the dry ice. The employer's manager stated that if he had known that there were 1,300 lbs. of dry ice to be picked up, it wouldn't have made any difference because he did not appreciate the danger involved. The dry ice company regularly made deliveries of orders over 250 lbs. for which it charged a nominal fee. They used bobtail trucks and a pickup truck which separated the dry ice from the driver. The dry ice company had made three deliveries over 1,000 lbs. of dry ice to the employer in the past where it used a bobtail truck and charged a $25 delivery fee. The defendant dry ice company claimed that when the employer increased the order to 1,300 lbs., it should have picked it up in a different truck or requested that it be delivered. Plaintiff claimed the duty was on the supplier to use reasonable care which would be to refuse to load 1,300 lbs. of dry ice in this enclosed compact van and insist on delivering it. The dry ice company also claimed that the printed warnings on the dry ice paper bags warned that suffocation could occur. Plaintiff claimed the warnings were vague and unclear as to when and under what circumstances suffocation could occur.

VanThe decedent is survived by his wife of 35 years and an adult son living at home. He earned $43,000 a year. The case was settled against the third-party dry ice company for $750,000 exclusive of the workers-compensation lien. The dry ice company, as a result of this lawsuit, changed its procedures to refuse to load a large quantity of dry ice in any enclosed vehicle and to insist upon delivery in a safe vehicle such as a bobtail truck or a pickup truck or it would provide delivery.

Although there are OSHA regulations regarding the handling of dry ice and exposure to it using ventilation, gloves, and breathing apparatus, nonetheless, a third-party may be liable. There may be shared responsibility between all parties. Each case must be evaluated on its own unique facts and circumstances.

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