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Court summarily dismisses wrongful death case arising out of electrocution death of apprentice

The Court of Appeals published one of the least transparent and most obtuse opinions it has published in years, this week, tossing a wrongful death case against Detroit Edison.  The case was brought by Rosalie M. Bagby, whose husband was electrocuted on a job site during his apprenticeship.  Bagby maintained that her husband died because the company knowingly exposed him to electrocution by a bus that was energized with 40,000 volts.  She presented expert testimony that the site was not propertly guarded, that the apprentice was not properly trained or supervised, that he didn't receive the proper equipment, and that it was entirely foreseeable that electrocution would result from the employer's failure to act reasonably.

Employers are normally not liable for injuring their employees, if the injury results from "mere" negligence.  A "trade off" for granting workers compensation to any employee injured on the job was to grant employers immunity unless they committed intentional wrongdoing.  Republican tort "reforms" resulted in the re-writing of the intentional acts exclusion a number of years ago to make the exclusion more narrow.  Today, it is not enough to demonstrate a statistical certainty that someone will be hurt by an employer's deliberate course of action:  one must either show actual evidence of intent to injure or "supervisory knowledge that an injury would follow from an employer's deliberate act."

If that seems like some form of hair-splitting and a discussion of how many angels can dance on the head of a pin, the opinion in Bagby v. Detroit Edison is a stellar example of how foggy language can obfuscate justice.  Authored by militant insurance-oriented judges, the opinion never actually explains what happened to the young apprentice.  Nor does it put the several acknowledged deficiencies in Edison's conduct into context.  Incredibly, it uses the young man's "many opportunities to exercise his own discretion" to obstruct a claim against the at-fault employer because a responsible employer is off the hook if the dead employee "had the chance to exercise individual volition."  We don't know what, if anything, the young man might have done wrong, but because he was not chained to an oar, his employer cannot be responsible.

We know that Edison failed to erect orange barrier rope around the hazardous area;  we know that supervisors visited the site and by Edison's own investigation,  "should have noticed" that barrier rope was missing.  There was evidence that the job supervisor did not conduct a mandatory pre-job briefing and apparently evidence to support that the apprentice and others lacked proper training.  The judges admitted that the rope should have encompassed the location where the apprentice placed his ladder to begin changing leads, however, they go on to speculate that he might have ignored the rope, even if it had been present.

Witnesses apparently anticipated a death and verbalized warnings, however, the judges concluded that "knowledge that the bus was energized at 40,000 volts and that contact or close proximity would be dangerous, does not constitute actual knowledge that an injury would be certain to occur."  This was deemed merely knowledge of a "general risk" that doesn't establish liability.

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