Could This Court Ruling Endanger Workers in the Ship Channel?

Javier Delgado, a welder with more than 20 years experience, was killed in an explosion at a crude oil storage facility in the ship channel in 2012.
Javier Delgado, a welder with more than 20 years experience, was killed in an explosion at a crude oil storage facility in the ship channel in 2012.
Texas Fourteenth Court of Appeals

Javier Delgado had been welding for about an hour the morning of June 2, 2012 when his torch hit either oil or vapor still lingering in the pipe. The resulting explosion at Oiltanking Houston, a crude oil storage terminal in Channelview, was so forceful it decapitated Delgado, a father of three and senior welder with more than 20 years experience. The blast also shattered the arm of Delgado's assistant and seriously injured two more of Delgado's colleagues, all of whom worked for L-Con, a contractor that Oiltanking had called in to weld a flange on the 24-inch crude oil transport pipe. A cleanup crew worked throughout the night filling more than 20 boxes with human remains.

In the petrochemical epicenter of the United States, such grisly industrial accidents are unfortunately not uncommon. Shortly after the accident, the federal Occupational Safety and Health Administration swooped in, investigated and delivered a slap-on-the-wrist $14,000 fine for failing to implement industry-standard safeguards that would have saved Delgado's life. After a nearly six-week trial in a personal injury lawsuit filed against the company, Harris County jurors awarded $21 million to Delgado's surviving family members and others injured in the explosion.

But thanks to tort reform and the state's Fourteenth Court of Appeals, that verdict was overturned last week in a decision that some attorneys and workplace safety experts fear could effectively make plant owners immune from lawsuits over contractors injured or killed at their facilities, potentially endangering workers if safety protocols go lax without the threat of multimillion-dollar jury verdicts.

“The message that this court decision sends out is this: Worker beware,” said Michael Sawyer, a safety engineering expert hired by the attorneys representing Delgado's family to review the case. “To safety professionals like myself, it sends the message that your job function is not as critical as you think.”

The court's decision centers on a specific section of state law, Chapter 95 of the Texas Civil Practice & Remedies Code, which the Texas Legislature passed along with a series of other so-called tort reform measures in the mid-1990s. Chapter 95, by all accounts, was designed to protect landowners from frivolous lawsuits by contractors who injure themselves while working on their property. Under the law, landowners aren't liable for injuries sustained by independent contractors if the landowner didn't have “actual knowledge” of the hazardous conditions that led to the worker's injury or death.

In the case of Oiltanking Houston and the explosion that killed Delgado and maimed three others, the appeals court determined that the company didn't have “actual knowledge” that the conditions on site put Delgado and his coworkers in serious danger. Which was surprising news for the jury foreman who sat through Oiltanking's six-week civil trial in 2013, who called the court's decision and reasoning “Kafka-esque.”

The jury foreman (who asked that we not use his name) ran through some of the details that were noted in Oiltanking's OSHA citations – that the pipe being welded on hadn't been thoroughly cleaned of flammable material and wasn't periodically tested for hazardous gasses, fumes and vapors. Under its contract with the welders, Oiltanking was responsible for making preparations on the pipe and taking such safety precautions. “It looked like a real disregard for safety,” the foreman said.

While OSHA and experts hired by the plaintiffs say hydrocarbons must have leaked from behind a plumbing cap Oiltanking's workers had used to cork the pipe (flammable fluid, they argue, that wouldn't have been there had the pipe been adequately cleaned), the company laid out an alternate theory in its appeal that essentially blames Delgado for the explosion that killed him.

In its appeal, the company says its experts have concluded that Delgado for some unexplained reason removed a venting hose on the plumbing cap, which allowed for flammable gases to escape into the work area. To jurors (11 out of 12 of them, at least), that explanation fell flat. As the foreman explained: “It was obvious from all the character witnesses that he (Delgado) was a very thoughtful guy, that he'd been doing this for over 20 years. What 20-year welder would dislocate a hose like that as he lights an arc? It just didn't make sense.”

What worries Robert Kwok, who represented Delgado's family at trial, is what he calls the impossibly high bar the court set for holding companies accountable when a contractor is killed or maimed because of safety precautions a facility failed to implement.

“So under this decision, plant owners need only tell their workers not to clean or air test and when asked if the condition is dangerous, say they don’t know,” Kwok wrote in an email. “In short, plausible deniability will carry the day – if you never gas test or adequately clean for hot work, you will never have 'actual knowledge' of any problem that can cause injury/death.”

Russell Hollenbeck, one of Oiltanking's attorneys on the case, wouldn't talk on record about the case. He provided us the same statement he gave Texas Lawyer, which first reported the appellate court's ruling: "We believe the decision of the Fourteenth Court of Appeals followed the law on the issues. Our clients are gratified by the results and the decision of the Fourteenth Court of Appeals." The Delgado family will likely appeal the court's decision. 

Delgado's son, Alberto, says that after his father's death, he slipped into a malaise that lasted for nearly two years. As he put it, “It was just work, school, bed…I couldn't concentrate, couldn't really do much else.”  Alberto, who's now 24 and a student at the University of Houston-Downtown, says his father, who immigrated from Mexico, enjoyed his work as a welder, but wanted more for his kids. He always talked about Alberto and his two youngest siblings going to college.

Alberto says his family was stunned not just by his father's death but by how it happened. “He always told us it wasn't that dangerous, I think, because he was trying to be positive. He didn't want to scare us,” Alberto said. “The trial was very upsetting. We'd expected all these procedures to be in place so nothing like this happens, but that wasn't the case.”

Three of Javier Delgado's brothers were also working at the Oiltanking facility the day of the explosion. One of Delgado's brothers was so close to the blast that he was among those injured. Witnesses at the facility testified that they saw him running around the plant after the explosion, covered in blood and brain matter, trying to find his other two brothers.

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