Defective Asphalt Paver Crushes Worker

Synopsis

Plaintiff’s Allegations

On June 9, 2011, Miguel Serrato, a 32-year-old worker, was struck by a 13,500 pound asphalt paving machine while laying asphalt in a parking lot. The paver crushed his pelvis, which caused grave and permanent injuries.

Just before his injury, two co-employees were operating a Gilcrest ProPaver 813. They were standing on the operator platform at the back of the machine while Miguel was shoveling asphalt around a drain next to a loading dock, where the paver could not maneuver.

One of the operators noticed a problem with the paver and stepped down from the operator platform to the ground to investigate. Without warning, an explosion and fireball erupted from the machine, and the other operator jumped off the paver. Rather than stop, the paver kept moving and veered to the right, pinning Miguel against the loading dock.

Miguel filed suit against James Gilcrest and Gilcrest ProPaver, Inc. for the defective design and manufacture of the ProPaver. The ProPaver lacked basic safety features, such as controls that would have stopped the ProPaver when the operator jumped off as well as stopped the separation of the combustible material and the flame source. The ProPaver also was manufactured with a defective hydraulic fitting, which broke and allowed combustible hydraulic fluid near the fire source.

Additionally, Miguel filed suit against Great West Equipment, Inc., the distributor of the defective ProPaver, as well as SPX Corporation and BOMAG Americas, Inc. – both of which purchased the ProPaver product line from Gilcrest – and Air-Way Manufacturing, the designer and manufacturer of the defective hydraulic fitting.

Defendants’ Allegations

The defendants contested liability and alleged that Miguel’s employer was at fault for failing to maintain, damaging and misusing the ProPaver. The defendants also blamed Miguel for not wearing his safety vest.

The purchasing defendants also contended they were relieved of liability by the purchase agreement of the ProPaver product line.

Injuries

The ProPaver crushed Miguel’s pelvis. He suffered pelvic fractures, skin burns, penile injuries, spinal injuries, emotional distress, depression, anxiety, and stress. He underwent an emergency surgery to stabilize his pelvis and was in the hospital, and then a rehabilitation center for months. Miguel and his wife feared he would be paralyzed but, over time, he was able to transition to a wheelchair, walker, and then a cane. His injuries required him to undergo two more surgeries: an L5-S1 fusion and the removal of a pelvic screw.

Miguel will require extensive future care, including medical, psychological and home care treatments for the rest of his life. Miguel’s treating doctors stated that future lumbar spine fusion and SI joint fusion surgeries would also be necessary.

At the time of the incident, Miguel had been working as a paver but had hoped to become a truck driver. Due to his injuries and functional limitations, Miguel’s vocational consultant opined he would not be able to return to work as either a laborer or driver. Miguel is expected to be able to work only part-time at a flexible job with little to no physical demands in the future.

Damages

Miguel required extensive medical care for his injuries, including surgical intervention, therapy, medications and pain management. The workers’ compensation medical lien for past treatment was $133,633.82. The incident resulted in significant lost earnings and earning capacity. The total workers’ compensation lien was $304,500.00.

Result

Miguel settled with the defendants before trial for $3,175,000 plus resolution of the workers’ compensation benefits lien in the amount of $304,500.00, for a global benefit to the client of $3,479,500.

(Settled in December 2015)