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Family of worker killed at construction site settles suit

June 15th, 2007 by Paul Passanante

Business owners who use “on-the-clock” workers for personal projects do so at their own peril. That was one of the lessons gleaned from a $1.5 million settlement in a wrongful death case handled by St. Louis attorney Paul J. Passanante.  (Simpson v. Bender Family Limited Partnership Number One, et al.)

Martin Simpson, 42, was a construction worker for a family-owned business: John Bender, Inc.  John Bender’s family organized Bender Family Limited Partnership Number One which owned a recreational property in Pike County, Missouri.  The family decided to excavate a lake on the property, and used employees of John Bender, Inc. to perform some of the work.

The limited family partnership was not bearing all of the labor expenses.  John Bender, Inc. paid its employees, including decedent, directly, without reimbursement from the Bender Family Limited Partnership Number One.   The work was supervised by John Bender’s son, Todd Bender, who acted not only as a supervisor for John Bender, Inc. but also, Passanante alleged, on behalf of the Bender Family Limited Partnership Number One. 

On Aug. 22, 2005, Simpson was working on the lake excavation at the property in Pike County. He was moving supplies to the lake site on an all-terrain vehicle (ATV).  When Simpson crested a hill, the ATV became airborne and crashed in the dredged out lake. He was killed.

Because of the intertwined personal and financial connections between the contractor and landowners, Passanante believed the landowner could be held liable for Simpson’s death.

On Aug. 22, 2006, Passanante filed a wrongful death suit in Pike County on behalf of Simpson’s wife Melody, 19-year-old son Erik, and his two minor children Katie and Ben. The defendants, the Bender Family Limited Partnership and an excavating company, R.T. White d/b/a White Excavation, allegedly created a dangerous and hazardous condition because the excavated lake area was not barricaded and warning signs weren’t posted.

The general rule is a landowner is not liable if a contractor’s worker is injured on the job.   Passanante contended, however, that in these circumstances the landowner could be held liable.   “In some circumstances, there is no workers compensation immunity when an employer utilizes an employee for personal projects,” explained Passanante.  

It is generally accepted that a landowner cannot be held liable to an injured employee of a general contractor performing work on the landowner’s premises.  Most of the time, the injured employee’s only remedy is workers compensation; this case demonstrates that there are clear exceptions to that general rule.

“It goes to show that you can’t always judge a book by its cover,” said Passanante. “If this book had been judged by its cover, it was just a workers compensation claim.”

After the depositions of John Bender and Todd Bender, but before the deposition of Deanna Bender Pratt was taken, the limited partnership agreed to settle the case for $1.5 million without admitting liability. The Circuit Court of Pike County approved the settlement of the wrongful death claim on May 14, 2007.

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