Several Food Lion employees have sued 3 welding companies after allegedly being exposed to toxic levels of carbon monoxide while the companies were performing work at a Food Lion Distribution Center in Elloree, South Carolina.
Let’s take a look at the lawsuit, including the circumstances that allow an injured worker to file a personal injury lawsuit in addition to or instead of a workers’ compensation claim.
On March 17, 2021, Industrial Mechanical Group (IMG) and Clauger USA employees were making repairs at a Food Lion Distribution Center located at 258 Snider Drive in Elloree, South Carolina.
The repairs were being made using welding equipment obtained from Sunbelt Rentals.
The Food Lion Distribution Center filled up with carbon monoxide several minutes after the welders began using the welding equipment. Eleven Food Lion employees working near the equipment at the time became sick and were forced to seek immediate medical attention.
On March 17, 2022, a year after the incident, the 11 Food Lion employees joined together to file a personal injury lawsuit against IMG, Clauger and Sunbelt.
The lawsuit alleges that the companies were negligent, and their negligence caused the employees to suffer carbon monoxide poisoning.
More specifically, the lawsuit alleges that:
- The welding equipment was designed for outdoor use only because it emitted toxic levels of carbon monoxide.
- One of the welding machines lacked proper labels warning of the risk of illness or death when used indoors.
- The companies failed to warn Food Lion employees they were using equipment that would emit toxic levels of carbon monoxide.
- The companies failed to measure and monitor carbon monoxide levels.
- The companies failed to ensure that carbon monoxide detectors and alarms were present.
The 11 Food Lion employees are seeking an unspecified amount of damages, including current and future medical expenses, pain and suffering and lost wages.
South Carolina workers’ compensation claims and personal injury lawsuits
Workers' compensation is a type of insurance that provides financial benefits to employees who are injured on the job.
In South Carolina, almost all employers with 4 or more employees are required to carry workers’ compensation insurance.
Workers’ compensation is an exclusive remedy, which means you typically can’t sue your employer or colleague if you’re injured in a work-related accident. Rather, you must file a workers’ compensation claim to recover damages.
However, in certain circumstances, you may be able to file a 3rd-party personal injury lawsuit in place of or in addition to a workers’ compensation claim.
A 3rd-party personal injury lawsuit can be filed when someone other than your employee or colleague causes your work-related injury. For example, the Food Lion employees suffered injuries caused by someone other than their employer or colleagues and can therefore file a personal injury lawsuit against the at-fault parties (i.e., the welding companies).
Unlike workers’ compensation claims, you need to prove fault to recover damages in a 3rd-party personal injury lawsuit.
Here are the elements you typically need to prove for a successful 3rd-party claim:
- A 3rd party (a person or company who is not your employer) owed you a duty of care. In other words, the person or company was required by law to exercise a certain degree of care to avoid causing harm.
- The 3rd party breached their duty of care, which means they didn’t act in a way that would be reasonably expected to prevent a foreseeable (anticipated) injury.
- That action (or failure to act) caused your injury.
- Your injury costs you money in medical treatment, lost time from work, or other expenses.
It’s important to note that you can’t “double-dip.” In other words, if you receive workers’ compensation benefits and then you win a 3rd-party lawsuit, you’ll likely have to reimburse the insurance company that provided your workers’ compensation benefits. This is called “subrogation.”
If you receive more compensation from your 3rd-party claim than your workers’ compensation claim (such as punitive damages, which aren’t awarded in workers’ compensation cases), you’ll be able to keep the difference.