A 9-year-old boy was killed at a large industrial site when he fell through a grate hidden beneath a sand hill on which he and a friend were playing. The site, which was located next to a residential neighborhood, stored materials for concrete mixing and contained large sand piles in open areas. The mounds appeared to be resting on level ground; however, they actually lay on top of metal grates covering a chute that allowed sand to drop to a lower level into a funnel, which controlled the sand flow in the mixing process.
The defendant had neither a monitoring system for the sand piles nor an alarm system to warn people in the area of impending mixing.
On the day of the accident, the two children entered the site and were playing on the sand piles. Their presence was unknown to the control-room operator. When the mixing began, the grate below a sand pile opened and one of the children was pulled under and into the funnel. Before emergency personnel could respond and cut the funnel open, the child had suffocated and died.
An investigation of the site revealed that prior fatal accidents had occurred under similar circumstances over a period of decades. Following this accident, subsequent remedial measures were taken by the defendant, including the placement of monitoring cameras that allowed viewing by the control room. Warning signs were placed in the sand pit area and alarms were designed to sound just prior to the grates being opened.
A forensic pathologist opined that, based on the facts and circumstances of the accident and the autopsy results, there was a five- to-20-minute window in which the child would have been conscious during the suffocation process.
The parents of the deceased child were divorced. The minor lived with one of the parents. Each parent was represented by separate counsel, who consulted with the estate’s probate attorneys.
Based on the presumptions of the Probate Court and given the facts of the particular parental relationship, an agreement was reached for an equitable split of the proceeds. As part of the settlement, trusts were established for the siblings of the deceased minor.
Type of action: Negligence & tort
Injuries alleged: Death by suffocation
Name of case: Withheld
Court/case no.: Withheld
Tried before judge or jury: N/A (settled)
Amount of settlement: $2.5 million
Date: January 2009
Attorney: Brian C. Dever, Keches Law Group, Taunton (for the plaintiff)
