Martinez v. U.S. Borax
February 1, 1996 (Judge Sidney G. Chapin)
$400,000.00 by defendant U.S. Borax
Plaintiff - Michael H. Whitehill
Defendants - Stephen Acker
FACTS: Plaintiffs are the mother and father of decedent Jorge Martinez, a nineteen year old, undocumented alien, from Mexico. On November 1, 1993, Jorge Martinez was employed by Ancon Marine to assist in cleaning silos at defendant U.S. Borax's facility in Boron, California. Plaintiff's decedent and his supervisor were inside the silo standing on unconsolidated borax material with safety harnesses which were not hooked up to a safety line. At the time of the accident, Mr. Martinez was attempting to dislodge a cable which had been dropped into the borax material by the Ancon Marine crew the previous work day.
The supervisor asked one of the Ancon Marine employees to go below the silo and open up a discharge door to assist in dislodging the cable. However, when the discharge door was opened Mr. Martinez was drawn into the borax. Mr. Martinez grabbed for his supervisor and both were buried in the borax. The supervisor, whose head was above the borax, survived. Mr. Martinez was buried in the silo and reportedly lived for four hours before succumbing. It took State and County rescue officials nearly five and one half hours to retrieve the workmen from the silo.
CONTENTIONS: Plaintiffs contended U.S. Borax was negligent in hiring a contractor whose employees had not received the requisite Mine and Safety Health Administrative (MSHA) training. In addition, plaintiffs contended U.S. Borax was negligent in not having on site rescue equipment to retrieve workers buried in porous material. Plaintiffs also contended that U.S. Borax was aware of the danger Ancon Marine employees were subjected to working inside the silo but failed to intervene to prevent harm to the employees. Finally, plaintiffs argued that under a non-delegable duty theory U.S. Borax could be held vicariously liable for violation of MSHA regulations by Ancon Marine.
Defendant contended the accident was the complete responsibility of Ancon Marine and plaintiffs' decedent. Ancon Marine's supervisors were trained to properly secure themselves to a safety line when working inside a silo and no further training would have made a difference. Ancon Marine employees, under the direction of an Ancon Marine supervisor, opened the discharge door which buried plaintiffs' decedent. Plaintiff, decedent's mother, lived in Mexico and had not seen decedent in four years. Plaintiffs had six other living children in the United States and Mexico.
SPECIALS IN EVIDENCE: None based on the citizenship status of plaintiffs' decedent.
SETTLEMENT DISCUSSIONS: Plaintiffs initially demanded $750,000.00 and defendant initially offered $150,000.00. The settlement was reached approximately one year and three months after the case was filed.