The case history here is extensive, but the crux of the Indiana Court of Appeals’ decision in the defendants’ favor was that plaintiffs failed to prove defendant property owner could have reasonably foreseen the possibility of a food truck blowing up on-site. At first glance, that seems a reasonable position. However, it turns out there have been a number of serious – and even deadly – food truck explosions across the U.S. in recent years.

In June 2014 – a year almost to the day of the Indiana food truck explosion – a propane tank on a food truck in Philadelphia exploded while customers were being served. Local news reports indicated that the force of the blast sent the metal tank 50 feet into a nearby backyard and flames shooting up 200 feet into the air. As a result of that incident, a 42-year-old woman and her 17-year-old daughter who were inside the truck, were killed after suffering major burns across much of their bodies. Three bystanders – including a little girl – also sustained serious burns and others were hit by debris. An investigation later revealed the 70-year-old propane tank was improperly filled, resulting in a gas leak and ultimately the explosion.more

The case resulted in $160 million pre-trial settlement (believed to be one of the biggest, if not the biggest), as well as new safety standards for checking and maintaining propane tanks.

Then just last month in Portland, Oregon, a food truck explosion early on a Sunday morning destroyed not only the truck but damaged three nearby buildings. No one was in or around the truck at the time, so thankfully no one was hurt. The cause is still under investigation, but officials suspect a malfunctioning gas line.

In the case recently before the Indiana Court of Appeals, the auto salvage business where the explosion occurred occasionally has flammable materials on site. This includes items left in a vehicle that was repossessed without warning or brought in after a crash, when previous owners didn’t have time to remove all personal items. The food truck operator had a “handshake deal” first established with the previous owner of the salvage yard to sell tacos from his truck on the property, paying $25-a-day to the salvage yard. The salvage yard owners never asked whether the taco truck operator was licensed to sell food or whether safety procedures were in place for use of the propane tank necessary to operate the food truck. Managers said they were not aware of any previous incidents involving fires, explosions or other dangerous conditions created by a food truck on its premises at any time prior to this incident.

Court records indicate the food truck suddenly exploded and caught fire, which fire officials and the health department later determined was caused by ignition of gas fumes from an open cooking flame. An employee of the food truck company was deemed responsible for the explosion when he opened a can of gasoline too close to the grill when trying to refill a generator.

Plaintiff, a customer who was injured in the explosion, sued the auto salvage yard and the taco truck company. Against the food truck owner, he alleged negligence in handling of combustible fuels, selling food without a license, failing to train workers and failing to inspect its truck and equipment. The auto salvage yard, he alleged, was liable for failing to monitor or inspect the truck company’s vehicle or equipment, failing to ensure the vendor had a license and failing to study proper food truck safety procedures. He also alleged the salvage yard was vicariously liable for the taco truck’s negligence because the two were operating as a joint venture. Our Gary personal injury attorneys note such liability is often assigned to employers.

The trial court granted summary judgment in favor of the auto salvage yard. Plaintiff argued on appeal that because of the nature of the salvage yard’s business, a gas explosion on site was foreseeable, and that if the company had taken proper precautions to inspect the food truck, the explosion would not have happened.

The majority in the Indiana Court of Appeals disagreed, finding that while it was the stove in the truck that caught fire, the injuries that occurred were the result of the food truck operator’s negligence. Thus, the court held the explosion was not foreseeable and the salvage yard not liable.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

German A. Linares v. El Tacarajo and U-Pull-And-Pay, LLC d/b/a Pic A Part, Feb. 8, 2019, Indiana Court of Appeals

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Indiana Drunk Driving Injury Lawsuit Verdict of $21 Million Affirmed, Nov. 8, 2018, Indiana Personal Injury Attorney Blog

Some companies specifically avoid paying above-board wages because then they’d incur other costs, like insurance for unemployment and workers’ compensation, requirements to pay overtime, administrative payroll expenses and other costs. Others will wrongly classify “employees” (entitled to these benefits) as “independent contractors.” But even independent contractors usually have clear written terms and are asked to file a tax form. Many times, companies will pay cash specifically for illegal immigrant workers, but you should know that your immigration status has no bearing on the Indiana workers’ compensation or personal injury benefits to which you are entitled. If you are paid under-the-table and are hurt at work, your claim for benefits/ damages could be more complicated than a typical work injury case. An experienced Munster work accident lawyer can best help you navigate the system and obtain appropriate compensation.

Recently, the Indiana Court of Appeals dealt with one such case, wherein a worker was seriously injured and his small business employer, someone he’d worked for under-the-table for nine years in the logging industry, was killed in that accident.

According to court records, plaintiff had worked with the same company for years, which was tasked primarily with tree-trimming. He cut trees, roped limbs and used a pull saw. The owner gave him all the tools, including boots and a company logo shirt, for the job. The hours were random, but it was usually at least 30 hours weekly. He had no set pay rate, but it was usually about $10 hourly – always paid in cash, never overtime and no 1099 forms.

One afternoon in 2016, the plaintiff accidentally knocked down a utility pole while chopping a rotted tree on his own. He called his boss, apologized for “messing up.” Plaintiff went home, his boss picked him up and they returned to the site together. Assessing downed wires wasn’t part of his typical job, but the plaintiff nonetheless was there to help. While checking the site, both men were shocked by a powerful volt of electricity. The business owner died. Plaintiff suffered serious injuries.

Plaintiff sued decedent’s estate, seeking payment from the businesses’ commercial liability policy. Insurer helped defend the claim, conceding that while it did offer general personal injury and medical damages for which the business might be liable, this particular incident was expressly foregone in the “worker exclusion,” which included employees, contractors, temporary workers and anyone else paid by the company for work. There was also an exclusion for injury stemming from “logging and lumbering” by the sole proprietor of the company and/or on his behalf.

Usually, workers’ compensation is the exclusive remedy for injured worker, meaning they can’t sue their boss – but also that they don’t have to prove their employer negligent (only establish the injury/illness occurred in the course/scope of employment). Those who fail to purchase proper work injury coverage could be held personally liable (possibly payable through umbrella coverage or estate assets, but that assumes the worker could show he was in fact an employee, not a contractor, requiring an in-depth judicial analysis). Depending on the details, other third party defendants (manufacturers of defective tools, careless property owners, etc.) might also be liable for damages.

With regard to this particular case, though, the commercial general liability policy, the appellate court ruled, was not responsible. The exclusions in the policy were clear. If the injured worker is hoping for compensation, he’ll have to seek it elsewhere.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

Smith v. Progressive Southern Insurance Co. et al., Aug. 31, 2018, Indiana Court of Appeals Lawyer Blog

More Blog Entries:

Pre-Existing Condition Doesn’t Bar Indiana Employee From Receiving Workers’ Compensation, May 2, 2018, Munster Work Accident Attorney Blog