The Enid News and Eagle, Enid, OK

February 28, 2013

Judge strikes down Zaloudek Grain’s defense

By Phyllis Zorn, Staff Writer
Enid News and Eagle

ENID, Okla. — District Judge Dennis Hladik wasted no time Thursday afternoon striking down Zaloudek Grain Co.’s defense that others might be responsible for horrific injury to two teen employees in August 2011.

The families of Tyler Zander and Bryce Gannon, both of whom lost legs when they fell into the floor auger of the Kremlin grain elevator, filed lawsuits against the company and several individual shareholders the same month as the accident. The families claim five counts of negligence and seek punitive damages.

Lawyers for the families last month filed a motion for partial summary judgment, asking the judge to block the grain company’s defenses that the teens’ injuries were caused by their own negligence, that they assumed the risk of their injuries and that their injuries were caused by the negligence of others.

In a four-minute court hearing, Hladik sustained the motion.

“The plaintiff’s motion for partial summary judgment is sustained,” Hladik told the lawyers gathered in the courtroom. “The defendant may not plead or prove as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee. As a matter of law, defendants are not entitled to rely on such affirmative defenses.”

Joseph Farris, attorney for the grain company, asked if the ruling applies to the individual defendants as well as the company.

“At this point, it applies to everybody,” Hladik said.

Hladik also told the parties he will require mediation in the case and he wants to get it scheduled for May. He directed them to consult their calendars and let him know of any dates they cannot be present for mediation.

Zaloudek Grain also is waging its own lawsuit against workers’ compensation provider CompSource Oklahoma, which refused to cover the teens’ injuries because it had canceled Zaloudek Grain’s policy months earlier for failing to provide information needed for audit.


Timeline of events

Timeline for the events surrounding the injuries to Tyler Zander and Bryce Gannon and the ensuing legal battle.

• Aug. 4, 2011 — Tyler Zander and Bryce Gannon fall into the floor auger while working at Zaloudek Grain Elevator in Kremlin. Rescue workers labor longer than an hour to extricate the teens from the machinery, before they are airlifted to OU Medical Center. Each boy lost a leg in the accident.

• Aug. 25, 2011 — Zaloudek Grain files a lawsuit in Oklahoma County District Court against CompSource Oklahoma over cancellation of Zaloudek’s worker’s compensation insurance.

• Aug. 28, 2011 — The Zander family and Gannon family file negligence lawsuits against Zaloudek Grain. The lawsuits claim five counts of negligence. The cases were assigned to Kingfisher County District Judge Robert E. Davis.

• Aug. 31, 2011 — Oklahoma Department of Labor fines Zaloudek Grain $750 for failing to comply with workers’ compensation law — the maximum fine allowed in the scenario.

• December 2011 — Occupational Safety and Health Administration’s Oklahoma City area office imposes $12,000 in penalties as part of a comprehensive safety inspection of the Kremlin facility, under the agency’s Regional Emphasis Program for Grain Handling Facilities. That inspection, unrelated to the August incident, uncovered five serious violations.

• February 2012 — OSHA regional office in Dallas imposed an additional $21,500 in penalties for violations related to the investigation of the August 2011 incident. Violations included failing to affix or secure the machine guard over the moving conveyor auger, failing to ensure the storage structure’s exit was free and unobstructed, failing to provide exit signs from the storage structure and failing to provide training for workers assigned to enter grain structures.

• April 13, 2012 — Oklahoma County District Court judge rules in favor of Zaloudek Grain on one component of the insurance case. CompSource then appeals to the Oklahoma Supreme Court.

• Sept. 18, 2012 — Oklahoma Supreme Court reverses the ruling of the Oklahoma County District Court, sending the Zaloudek Grain v. CompSource case back to district court. Zaloudek Grain files a request for another hearing of the matter.

• Oct. 12, 2012 — Kingfisher County District Judge Robert Davis withdraws from the negligence lawsuits, after lawyers for the Zaloudeks file their third motion seeking Davis’ recusal.

• Nov. 16, 2012 — Judge Roy Dean Linder, presiding judge, assigns the negligence lawsuits to Garfield County District Judge Dennis Hladik.

• Dec. 13, 2012 — Judge Hladik rules on a number of issues in the negligence cases. He rules Zaloudek Grain can’t use its lawsuit against CompSource as an excuse not to cooperate with lawyers for the injured teens; gives William and Robert Zaloudek 15 days to answer discovery requests from the families’ lawyers and 45 days to appear for depositions; and finds Mike Parrish, the manager of the grain facility, and Ethan Parrish, a witness to the events that day, in contempt of court for not showing up to give depositions to the families’ lawyers. Hladik orders both the Parrishes to either give depositions by Feb. 8 or appear in court to be fined and held in jail. Hladik also sets deadlines for discovery to be completed by both sides.