Six Flags blames roller coaster company for fatal Texas Giant accident

Six Flags claims the Texas Giant train involved in a fatal accident in July was a “defective product that was unreasonably dangerous in design, manufacture, distribution and promotion."

Rosa Esparza, a 52-year-old grandmother, died instantly when she fell from the roller coaster. Her family is suing Six Flags and Gerstlauer Amusement Rides, the German firm that made the roller coaster trains.

Arnd von Waldow, an attorney representing Gerstlauer, said he was surprised Six Flags blamed Esparza’s death on the company in a court filing Friday. He said Six Flags was not a passive customer.

“This roller coaster was built according to the specific design specifications and was reviewed, tested and approved by Six Flags,” von Waldow said. “Six Flags was intimately involved in the design and production of this roller coaster. ... Six Flags had this designed exactly the way Six Flags wanted it to be designed.”

The Arlington amusement park’s allegations against the ride company don't signal the end of the Texas Giant.

A Six Flags spokeswoman wrote in an email that the ride is safe after additions, including seat belts, were made after the accident.

“We reopened the ride last fall following the addition of incremental and overlapping safety measures that included redesigned restraint-bar pads from the manufacturer and new seat belts,”

spokeswoman Sharon Parker wrote. “The Texas Giant is safe to ride, and we look forward to opening the park for our 2014 season next week."

The original Texas Giant, a record-setting wooden roller coaster, opened at Six Flags in 1990. It closed after two decades and was rebuilt as a steel hybrid roller coaster.

The park closed the renovated ride for about two months last summer for an internal investigation and redesign. In addition to seat belts, lap bar pads were added before the ride reopened in September.

Von Waldow blamed Esparza's death on the failure of Six Flags to follow safety procedures. He pointed to witness statements in the police investigation saying that it appeared Esparza’s lap bar was too high.

If the lap bar is touching the rider’s abdomen and legs, there isn't a danger of the person falling out, von Waldow said.

He said the ride maker has photos of Six Flags engineers in Germany hanging upside down from a roller coaster train exactly like the one involved in the Texas Giant fatality.

“If they followed these procedures, this accident never would have happened,” von Waldow said.

Esparza fell 75 feet from the roller coaster train in the opening moments of the ride.

In Friday’s court filing, Six Flags says it “followed all of the recommended operation and maintenance procedures on the ride as set forth by ... [Gerstlauer] and believe they met the standard of care with regard to the inspection, maintenance and operation of the ride.”

After the accident, test seats were installed at the entrance to the Texas Giant so riders can see whether they will fit safely in the trains. When the ride reopened, Six Flags said in a written statement that “guests with unique body shapes or sizes may not fit into the restraint system.”

An early deposition in this lawsuit questioned whether Esparza’s larger size should have raised questions about the fit of the lap bar.

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Source: Dallas News (Mosier, 2/20)

Texas family petitions for upgraded 911 systems after hotel death

ALBANY, GA- Last month an East Texas family suffered the loss of a young mother, Kari Hunt Dunn. She was stabbed multiple times in a hotel room where she was staying with her family, her 9 year old daughter tried calling 911 for help but couldn't get through. She tried several times but heard nothing but static, she had no idea she had to dial a prefix before making the call from the hotel phone.

"We spend a lot of time doing that and we know 911 and young children just typically know 911 and they expect to hear a voice on the other end," Albany-Dougherty Emergency Management Agency representative Jim Vault said.

That's why the Hunt family is striving to get support for an online petition that would require every single hotel and business to upgrade their 911 systems and get rid of the dial out number. So far, over 400,000 people are have signed for the change called "Kari's Law," in honor of the mother's life who was lost.

"It impacts a larger number across the nation and again with any public safety time is essence," Albany-Dougherty EMS Training Supervisor Richard Roberts shares. "It can make the big difference whether it's EMS, law or fire."

Vault explains, "If they have to dial a prefix to get out then it can become confusing and time delaying and they never get the call through."

In the Albany-Dougherty area, the enhanced 911 system is in place, it gives location and number to which the caller is calling from and the prefix is also not a requirement. However, some cities and their businesses still require the dial out before. Emergency officials feel it's an important issue that sometimes falls under the radar.

"For us it would be much better if 911 means 911," Vault said.

The Hunt family hopes the requirement will help those in need get help faster.

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Source: WALB (Rosales, 1/13)

Mother angry over handling of school playground accident

PASADENA, Texas -- A first grader from Fisher Elementary is nursing a broken wrist and her mom believes the school didn't do enough after it happened.

Herminia Castillo fell off the monkey bars.

"She landed really, really hard on the floor,' said Herminia's mom Rosalinda Garcia. "Not one of the teachers had gone to go and check on her or see if she was okay."

The school let Garcia look at surveillance video from the playground and she noticed it was actually other students who helped Herminia over to the adults.

"They weren't supervising her properly to attend to her on time," Garcia said.

We asked Pasadena ISD for the video but they won't release it at this point.

However, district officials tell us that another child was injured moments before and since Herminia's injury didn't appear that serious, they went in order.

The first grader was eventually taken inside.

"The teacher took me to the nurse and then the nurse put ice on it and water on it," Castillo said.

Garcia says she got the call about what happened an hour later.

When they were reunited, the 6-year-old was taken to the emergency room. Her fractured wrist means no PE or recess for a little while.

Since Herminia's mom thinks some retraining is in order, district officials have agreed to meet with her next week to talk about it.

No one from Pasadena ISD would talk on camera about the incident but they did send us this statement:

We regret that this first grade student got hurt playing on the playground during recess. Teachers on the playground and the campus R.N. responded quickly and appropriately to this child’s injury. The supervising teacher who responded to the injured student got to her within 35 seconds.

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Source: KHOU (Craig, 10/24)

Police say woman's death at Texas climbing gym a tragic accident

GRAPEVINE, Texas –– Police say the death of an experienced climber at a Grapevine climbing gym was an unfortunate accident.

According to Grapevine police, 52-year old Susan Mailloux likely forgot to clip herself into the safety rope system provided by the gym. If Mailloux’s Facebook page is any indication, she loved rock climbing. It is covered with pictures of her on the wall.

Yesterday, police say, she was climbing with her boyfriend and his son, at Summit Climbing. At the top, 25 to 30 feet up, police say Mailloux let go, as if she thought she was tied in. She was not.

“Once she got to the top of that road ladder she simply released as if she was attached to it and then she fell to the ground,” said Sgt. Robert Eberling with the Grapevine Police Department.

The gym requires climbers to sign a waiver warning against all types of possible injury or death, including “freakish accidents which cannot be forseen.” Police say Mailloux failed to clip into, what’s called an auto-belay, an automatic harness system that lowers a falling climber, slowly, to the ground.

Ben Mann is also a climber at Summit, he did not know Mailloux.

“All of the rock walls are lined with ropes and about every five to ten feet there’s a sign that says don’t forget to clip in, or make sure you’re clipped in,” Mann said.

The manager of the Budget Suites in Irving, confirmed Mailloux had lived here for several years Former neighbors say she also has a son in the Navy. The owner of Summit said Mailloux came in once every week or ten days to climb and police confirm had experience climbing.

The gym was closed today and will also be closed tomorrow, the owner says, out of respect for Mailloux and her family.

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Source: Kens5 (Schechter, 09/24)

Construction workers in West Campus apartment complexes allege mistreatment, unpaid wages

Of the three West Campus apartment complexes that opened to more than 1,000 students this fall, at least two were built by construction workers who claimed they were mistreated.

Documents obtained from the City of Austin show complaints have been filed against the contractors who oversaw construction of 2400 Nueces and The Callaway House for lack of rest and water breaks for construction workers. Workers Defense Project, a nonprofit that strives to represent mistreated workers in Texas, has also taken legal action against owners of The Callaway House twice this year after learning of unpaid wages for construction workers who worked on the private off-campus dorm.

The City of Austin received a complaint, regarding breaks, against the construction project at the 2400 Nueces site. Construction workers who built the property have claimed they were not given rest or water breaks during day-long shifts of work. While Texas does not require breaks at the state level, a City of Austin ordinance requires a 10-minute rest break for every four hours on the job. A construction worker, who worked on 2400 Nueces and spoke to The Daily Texan on the condition of anonymity, said he was mistreated in several ways while working on the project.

Despite the conditions and not receiving overtime pay, the worker said he could not quit because he had to provide for his family and the work at 2400 Nueces was the only job he could get at the time.

Hensel Phelps, the general contractor for the project, did not return a request for comment, but city records show an inspector visited the site in response to the complaint filed in July 2012 and took pictures of rest stations, water coolers and the required city-issued signage about the policy. The land 2400 Nueces was built on is leased by UT to a private college student housing developer.

Around the same time the rest breaks complaint was filed, a construction worker at 2400 Nueces fell from the sixth floor injuring himself and the two other workers he fell on. They were all treated at a hospital for non-life-threatening injuries.

The worker interviewed by The Daily Texan — who was not one of the workers who fell — said he and other construction workers were not given any kind of health insurance or compensation while working on the site.

Greg Casar, a business liaison representative for Workers Defense Project, compared Texas’ construction industry to doping in sports.

“When it is so competitive, and there is really no enforcement or oversight, then it creates an incentive for everybody to cheat,” Casar said.

Texas is one of the nation’s most robust states for construction, with more than 950,000 construction workers in the state, according to the 2010 U.S. Census. Accompanying this massive amount of construction work is limited state government oversight and regulation. Unlike California and other states with large construction industries, Texas does not require breaks for workers or compensation for on-the-job injuries. The state also has no task force in place to monitor workplace fraud.

The allegations made by workers in West Campus are consistent with statewide worker mistreatment issues discussed in a report by UT.

Earlier this year, UT faculty — in partnership with Workers Defense Project and faculty from the University of Illinois at Chicago — released Build a Better Texas, a report that examined the construction industry in Texas. The report found 39 percent of workers surveyed said they did not receive rest breaks. Another issue many construction workers face is misclassification as contractors, because of which workers are often not paid for overtime, forced to supply their own safety equipment and are not given insurance.

Workers Defense Project alleges this occurs at most private construction projects like 2400 Nueces.

“The idea is you are completely on your own,” Casar said. “It totally severs any level of responsibility anybody has to that worker.”

Worker misclassification, or workplace fraud, is illegal nationwide but the way individual states handle and investigate these instances varies greatly. About 41 percent of workers surveyed said they were victims of workplace fraud, according to Build a Better Texas.

Further complicating the situation is the distant relationship between general contractors and construction workers, who are often hired and supervised by subcontractors.

“It’s not the general contractors that are cheating,” Casar said. “They have a direct working relationship at the developer level, and aren’t overseeing the labor at any phase. If you just build a building, and don’t ask questions, that’s what you get.”

In July, Workers Defense Project filed a lien — a legal maneuver that prevents the owners from selling the property and could lead to further legal action — against American Campus Communities, the owner of The Callaway House, after construction workers who worked on the project claimed $36,800 in unpaid wages. Earlier this week, The Callaway House’s general contractor, Harvey-Cleary, promised to pay the unpaid wages following the lien.

This is the second time Workers Defense Project has successfully advocated for unpaid workers against the owners of The Callaway House. In April, workers won a claim of more than $24,000 in unpaid wages.

Gina Cowart, vice president of investor relations and corporate marketing at American Campus Communities, said the company had instructed Harvey-Cleary to pay the workers for the full amount of unpaid wages. American Campus Communities is “rigorous” in paying its contractors and service providers, Cowart said.

“We do not believe we have been accurately portrayed by Workers Defense Project communications,” Cowart said in a statement. “However, we do respect the role they played in bringing the matter to our attention to foster resolution.”

Almost a quarter of construction workers surveyed by Build a Better Texas reported they had previously been denied wages.

The documents obtained from the city also revealed a complaint filed in May against The Callaway House construction project for violating the ordinance that requires rest breaks on construction sites.

City records show an inspector visited the site after the complaint and found the required city-issued signage about the policy was posted at the site. The inspector also reminded the management of the ordinance.

Harvey-Cleary did not return a request for comment.

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Source: Daily Texan (Blanchard, 9/06)

Elder abuse claim adds new liability risk for doctors

A physician who allegedly failed to refer a patient to a specialist can be liable for elder abuse, a California appeals court has ruled. The decision by the Court of Appeal for the State of California, 2nd Appellate District, said doctors can be sued for elder abuse for their outpatient treatment of seniors, regardless of whether they had “custodial obligations” to the patient.

Legal experts say the ruling broadens liability for doctors who treat older patients and exposes them to additional legal penalties when negligence claims arise. Plaintiff attorneys in states with similar elder abuse laws probably will use the California ruling as fuel to expand physician liability in their jurisdictions, legal analysts said.

“This is going to open the door for medical malpractice plaintiffs over the age of 65 to start pleading elder abuse in addition to medical malpractice,” said attorney Cassidy C. Davenport, who represents Pioneer Medical Group, the defendant in the case. “This is going to allow them to circumvent tort reform statutes” since elder abuse is not included in such medical liability reforms.

In the California case, Elizabeth Cox, 83, began receiving care at Pioneer Medical Group in Cerritos in about 2000, according to court documents. Several health professionals treated her for onychomycosis, which limits mobility and indirectly impairs peripheral circulation.

In 2007, Cox’s vascular issues worsened, and a Pioneer family physician diagnosed her with peripheral vascular disease, according to court documents. The patient’s condition continued to deteriorate, and she visited Pioneer Medical Group at least seven more times during the next two years complaining of various aliments associated with peripheral vascular disease. She was admitted to a hospital with gangrene in 2009, and her right leg was amputated. She died from blood poisoning in 2010, court documents say.

In 2011, Cox’s daughters sued Pioneer Medical Group and several staff members for elder abuse. The plaintiffs said the medical group’s continued failure not to refer Cox to a vascular specialist constituted abuse and neglect.

The medical group contended it was not liable for elder abuse because doctors treated Cox as an outpatient, and liability for elder abuse “requires assumption of custodial obligations.” The group argued the alleged conduct constituted only professional negligence and not the “reckless neglect” required for an elder abuse claim. A lower court ruled in favor of Pioneer, throwing out the case.

Appeals judges reversed. They sent the case back to the lower court, allowing the elder abuse claim to move forward against Pioneer Medical Group. Whether the defendants’ conduct was reckless is for a jury to decide, the judges said.

“The jury may view defendants failure to refer Mrs. Cox to a vascular specialist as deliberate indifference to her increasingly urgent medical needs without regard for the excessive risk to which they exposed her by their failure to seek appropriate specialized care,” the May 24 opinion said.

Pioneer Medical Group in July asked the California Supreme Court to review the decision. At this article’s deadline, the court had not said whether it would accept the case.

Investigations stem from adult protective laws

The California Medical Assn. was disappointed with the decision, saying it blurs the lines between conduct that falls under the state’s Medical Injury Compensation Reform Act and the Elder Abuse Act. The CMA issued a friend-of-the-court brief in support of Pioneer Medical Group.

“The opinion really will hurt the goals of both MICRA and the Elder Abuse Act,” said Alicia Wagnon, CMA legal counsel. “The facts of this case are so clearly professional negligence. That [these actions] can also be deemed elder abuse is simply wrong, and it really eviscerates MICRA’s definition and the purposes of MICRA.”

All states have some form of adult protective services statutes that authorize and regulate investigation of elder abuse cases. Generally, APS laws establish a system for the reporting and review of elder abuse claims and for the provision of social services to help victims, according to the American Bar Assn.’s Commission on Law and Aging. Most jurisdictions also have separate elder abuse laws that provide for civil or criminal damages in cases of elder abuse and neglect, either by individuals or institutions.

The intent of such laws is to prevent custodians from abusing and taking advantage of elderly patients, Davenport said. She notes the majority of elder abuse claims arise in the nursing home context and involve repeated acts of ignoring an elderly patient’s basic needs such as adequate food and water.

“We have an aging population in nursing homes [who are at risk] for being abused physically and financially,” she said. Elder abuse laws are intended “as an incentive to go after those who are abusing these elders. It wasn’t to say elders get extra incentive to sue the physician for medical malpractice.”

The California ruling confirms that physicians should be held responsible for recklessly failing to provide necessary medical care, said Clay Robbins III, the plaintiffs’ attorney.

“Merely because a person withholding [medical care] also happens to be a physician should not have bearing as to whether that individual should be responsible for the enhanced remedies under the act,” he said.

Jury awards not covered by insurers

The ruling is concerning for physicians who treat elderly patients, said William E. Hopkins, a health law attorney and partner at Brown McCarroll in Texas.

“Physicians are now on notice that they’re not just being judged on a negligence standard; they’re now being judged on negligence and this other standard,” he said. “I would not be surprised if [elder abuse] is pled in most cases where there’s some level of medical negligence with elderly people.”

Hopkins said Texas has an elder abuse law similar to California’s, and that he can foresee a similar case playing out in his state.

“This is the kind of case that certainly will have plaintiffs lawyers’ minds working with regard to, “Is this something I should be pleading?’ ” he said. “They’re going to pull the elder abuse act in their state and see if this kind of argument applies.”

If the decision stands, physicians found liable of elder abuse would be forced to pay jury awards out of pocket, Davenport said. Insurance policies generally do not cover elder abuse claims. Fear of such payments probably would lead to more settlements, she said.

The decision jeopardizes doctors’ professional medical judgment and could negatively affect patient care, said Bret C. Perry, an Ohio medical liability defense attorney who defends physicians, assisted-living facilities and nursing homes.

“The practice of medicine and decisions made on a daily basis by physicians and health care professionals cannot be legislated, and those decisions clearly fall within the purview of professional judgment,” he said in an email. “If this ruling is permitted to stand, I can foresee a chilling effect and negative impact on the future of medical care for the elderly and potentially an exodus of professionals leaving the state due to this type of potential liability.”

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Source: Amed (Gallegos, 7/22)

Deaths at Texas railroad crossings rising, despite state safety plan

DALLAS — Deaths at railroad crossings in Texas have doubled in the last year, renewing questions about whether the thousands of miles of track in the state is being safely maintained and monitored, figures compiled by The Associated Press show.

The spike in fatalities comes after a four-year period in which Texas had lowered its death toll significantly and with the state in the midst of implementing a federally mandated plan aimed at improving rail-crossing safety.

They include not only the Nov. 15 accident in Midland that claimed the lives of four military veterans on a parade float, but an equally horrific accident that killed three generations of one family in the East Texas town of Diboll last March.

Critics of the railroads believe they deserve much of the blame for increasing the speed of trains without adjusting the timing of crossing gates, while state authorities contend that motorists are ultimately responsible for their own safety.

"In 2012, we can do all kinds of exploration in space, and yet, with all that technology, people are still getting killed at railroad crossings," said Sally Tingle, executive director for the Texas chapter of Operation Lifesaver, a nonprofit organization dedicated to eliminating railroad crossing accidents.

The AP found 32 people died this year at railroad crossings in Texas, based on federal data, news accounts and statements from the Texas Department of Transportation. For the previous four years, the state had averaged just 20 deaths a year. That followed two years in which the death toll reached 34 and 44.

The 2012 Texas death toll contrasts with the national statistics, which show railroad crossing deaths have generally decreased in the last five years and could be headed for a further drop-off this year. Data compiled by the Federal Railroad Administration through the end of August shows 168 deaths nationally, 10 less than what was reported for the same period in last year.

Experts said the spike in deaths in Texas merits evaluation, but they cautioned that it may simply be a statistical anomaly. The best measure is what the numbers show over several years, they said.

"Every accident is important, particularly to the family and community that experienced it," said Bob Chipkevich, former director of the National Transportation Safety Board's railroad accident investigation division. "But when you look for trends, you have to look at the longer term."

Texas, with nearly 11,000 miles of track, was one of 10 states required to develop a railroad crossing safety action as a result of a federal law enacted in 2008. The states were selected on the basis of the number of incidents at crossings reported for the previous three years.

The Texas plan, developed by the state's Department of Transportation, lists dozens of strategies, including evaluating crossings with multiple accidents and developing outreach programs to better educate the public and law enforcement.

In an email, TxDOT spokeswoman Veronica Beyer said the plan, which won't be fully implemented until 2014, has already led to crossing upgrades and improved education.

However, she noted that motorists "hold the key" to safety.

"We will continue to work with federal partners and railroad companies to ensure safety devices are working at railroad crossings, but, similar to roadway safety, we need the help from Texas drivers to enhance safety at these crossings as well," Beyer wrote.

Bob Pottroff, a Manhattan, Kan., attorney whose practice focuses on railroad crossing accident cases, said it's misguided to put the onus on motorists. The real issue is how the railroads are increasing the speeds of their trains without adjusting mechanical devices at crossings to provide longer intervals between initial warnings and the trains' arrival, he said.

Pottroff, who has filed a lawsuit on behalf of two veterans injured in the Midland accident, said the problem is particularly acute in Texas, a key corridor for moving freight to and from the West Coast.

"They are flying trains through Texas faster than they ever have," he said.

The four veterans killed in Midland were part of a parade honoring wounded vets when the flatbed truck carrying them collided with a Union Pacific train traveling 62 mph. The driver of the truck ventured onto the track after the warning signals had begun to flash and before the arms had descended, according to the National Transportation Safety Board.

The NTSB said the device was activated within 20 seconds of the train's arrival, the minimum standard required by federal regulations. However, TxDOT documents made public last week indicate that the device was designed to activate at 30 seconds.

Darin Kosmak, director of TxDOT's rail-highway section, wrote in an email that trains are traveling along the rail line at a maximum speed of 70 mph even though the crossing's design was based on speeds of no more than 25 mph.

The Diboll collision also involved a Union Pacific train and a crossing set for a 20-second warning time.

The train slammed into a Jeep Wrangler that had stopped on the track soon after the arms descended, causing the deaths of the 19-year-old driver, her 54-year-old grandmother and her 18-month-old nephew.

The conductor told police he thought it was a suicide because the vehicle never moved even though it was on the track for 10 seconds. But Jerry Easley, a lawyer who represented the family in a lawsuit against Union Pacific that was settled out of court, said evidence suggests the vehicle stalled and that the two women struggled to remove the toddler from a car seat.

Easley said video showed the vehicle entered the crossing 26 seconds before impact, but that wasn't enough time to escape the approaching train, which was traveling about 50 mph. The train's operators sounded the horn and backed off the throttle but didn't use the emergency brake until only a few seconds before the crash, he said.

Had the brake been set earlier, the women might have been able to save themselves and the child, Easley said.

"It certainly would have bought them more time, but the railroad can say, 'We don't put on the emergency brake because that might cause a derailment,'" he said.

Union Pacific spokeswoman Raquel Espinoza-Williams said the engineer complied with federal regulations by sounding the horn 21 seconds before the train reached the crossing.

"It is important to remember that trains cannot stop quickly," she wrote in an email to the AP, adding that a train going 55 mph can travel more than a mile before coming to a complete stop.

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Source: Dallas News (AP, 12/01)

Fan's death at Reliant Stadium ruled an accident

The death of a 25-year-old man who fell about 60 feet from an escalator at Reliant Stadium in August has been ruled an accident, officials said.

Jonathon Glenn Kelly died after he fell while he was allegedly trying to slide down the outside of the escalator handrail at the Coca-Cola Gate near the stadium's northeast side about 8:10 p.m. Thursday while he attending the Texans' last preseason football game.

The Harris County Institute of Forensic Sciences ruled his death was an accident and he died of multiple blunt force injuries, said Tricia Bentley, institute spokeswoman.

Kelly was descending from level five to level three when he fell about 60 feet, Mark Miller, general manager at SMG Reliant Park, said during a news conference Friday.

Police could not confirm the man was horse-playing, said Jodi Silva, a Houston Police Department spokeswoman. Silva said HPD was investigating the case as an accidental death.

Kelly was attending the game with some friends, said a co-worker who was not at the event and asked that his name not be published.

The co-worker said Kelly had worked for about three months as a plant operator at a private water and wastewater utility company.

Miller said stadium staff are posted on each landing at escalators, and signs on the equipment encourage safety.

The day after Kelly's death, 20-year-old Isaac Grubb of Lenoir City, Tenn., was killed when he somehow fell over a 33-inch railing and plummeted to the lower level of the Georgia Dome in downtown Atlanta during the Tennessee-North Carolina State game, according to the Associated Press.

The Associated Press stated Grubb had been cheering Tennessee's second touchdown when the accident happened around 8:23 p.m., said Frank Poe, executive director of the Georgia World Congress Center Authority, which operates the stadium.

The fans' deaths come just more than a year after 39-year-old Shannon Stone died when he fell during a Texas Rangers game in Arlington last July.

Stone had grabbed a baseball tossed by outfielder Josh Hamilton toward the stands and toppled over the railing, falling about 20 feet to concrete below.

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Source: Chron (Lezon, 9/5)