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October 11, 2001
Lawsuit Calls for More Than Workers' Comp
A c
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ase of workers' compensation or employer crime?

That's the crux of a California lawsuit coming under close scrutiny from employment law experts.

The suit stems from a 1999 refinery explosion and fire that killed or injured several employees of the Tosco Corporation.

The traditional remedy for workplace death or injury is workers' compensation benefits. But the plaintiffs allege that the company committed the crime of false imprisonment by failing to allow firefighters to immediately help rescue two employees who were trapped on scaffolding more than 100 feet in the air.

One of the workers died, while the other, who jumped from the scaffolding, suffered severe burns and must now use a wheelchair.

If they can establish that Tosco committed a crime, the plaintiffs, including injured worker Steven Duncan and the family of deceased coworker Ernest Pofahl, could sue for millions of dollars in damages, according to The Recorder, a law journal.

In a tentative ruling on several critical motions last week, Judge James Trembath of Contra Costa County Superior Court agreed that Tosco's failure to allow firefighters to immediately help rescue Duncan and Pofahl might constitute false imprisonment.

But he went on to indicate that he's not buying other arguments that Tosco behaved in a criminal manner by compiling a poor safety record, cutting back on staff, and allegedly making threats to workers who spoke up about safety.

If that becomes Trembath's final ruling, it would remove issues that the plaintiffs hope to discuss at trial, and in particular undermine the cases of two plaintiffs who weren't physically injured, according to The Recorder.

Trembath said he expects to make a final decision on the various motions in coming weeks.

Tosco attorney John Lyons has countered the false-imprisonment argument by saying firefighters were supposed to follow the lead of the in-house rescue workers. The allegations are merely a critique of Tosco's rescue efforts, he said. Even if the refinery made a bad call, it didn't constitute false imprisonment, he said.

"That is not violence," said Lyons. "That is not coercion."

To view The Recorder story on, click here.
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