Randolph man opening door caused back injury

By Kelly Holleran | Aug 20, 2009

ELKINS – Clorox and Kingsford are asking the federal court to dismiss a case against them in which a Randolph County man says he incurred spinal injuries after being forced to open a heavy metal door.

David Messenger originally filed the case in Tucker Circuit Court on May 11 against Kingsford Manufacturing Company and Clorox, but the defendants later removed the case to federal court.

In his complaint, Messenger says he was working for Kingsford Manufacturing Company as a dryer operator and materials coordinator on May 22, 2007, when the incident occurred.

As part of his work, Messenger was required to open a door leading to a briquetting dryer in order to lower the temperature in the room so it would not catch on fire or explode, according to the complaint.

"The defendant failed to adequately maintain the doors to its briquetting dryer #1 in safe operating condition because the doors could not be opened by application of a safe quantity of human muscular exertion thereby exposing workers and the plaintiff to a high risk of serious injury from tears, strains herniations and fractures to human tendons, muscles, cartilage and bones," the suit states.

In addition, the handle to the door was located only about one foot off the ground, requiring Messenger to bend in an awkward and confined position to open it and subjecting him to spinal injuries, the complaint says.

Because of his work, Messenger says he received severe and disabling injuries to his lumbar spine, experienced extreme physical pain, suffering and permanent physical impairment and lost wages. In addition, he lost his future earning capacity and benefits, lost his capacity to enjoy life, incurred medical expenses, annoyance and inconvenience and experienced scarring and permanent disfigurement, according to the complaint.

Messenger blames Clorox for failing to provide a safe work place. He says Kingsford subjected him to a high risk of serious injury.
Kingsford and Clorox are asking the court to dismiss the case because they say Messenger fails to state a claim upon which relief can be granted.

The two companies also deny many of Messenger's allegations against them, but admit that Messenger worked for them and performed the duties he described in his complaint on the day in question.
The defendants contend they did not deliberately cause Messenger's alleged injuries.

"Defendants affirmatively allege that at the time and place described in the complaint they had no actual knowledge nor appreciation of the existence of any specific unsafe working condition, if indeed such condition existed at all, that presented a high degree of risk and strong probability of serious injury," the complaint says.

In the two-count suit, Messenger is seeking compensatory and punitive damages, plus costs, attorney's fees, pre- and post-judgment interest and other relief the court deems just.

In addition to their request that the case against them be dismissed, Kingsford an Clorox are seeking costs.

Kingsford and Clorox removed the case to federal court because they say there is a diversity in residency between them and Messenger and because Messenger is seeking more than $75,000.

J. Kristopher Cormany of Cormany Law in Charleston will be representing Messenger.

James A. Wilson and Tiffany A. Swiger of Steptoe and Johnson in Clarksburg will be representing Kingsford and Clorox. Judge John Preston Bailey will be hearing the case.

U.S. District Court case number: 2:09-CV-77

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